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D-ELECTION CASE OF HORGAN v. TINKHAM 



HEARINGS 



BEFORE THE 



COMMinEE ON ELECTIOiNS No. 2 



HOUSE OF REPRESENTATIVES 

SIXTY-FOURTH CONGRESS 

First Session 



ON 



THE CONTESTED-ELECTION CASE OF FRANCIS J. HORGAN 

V. GEORGE HOLDEN TINKHAM, FROM THE ELEVENTH 

CONGRESSIONAL DISTRICT OF MASSACHUSETTS 



MAY 3 AND 4, 1916 




WASHINGTON 

GOVERNMENT PRINTING OFFIOE 

1916 






D. 



•ju bO IS J 



CONTESTED-ELECTION^ CASE OF HORGAN v. TLNKHAM. 



Committee ox Elections Xo. 2. 

House of Representatives, 

Wednesday^ May -5, 1916. 

The committee met at 10 oVlock a. m.. Hon. James A. Hamill 
(chairman) presiding. 

The CiiAimiAN. Are counsel ready to proceed in this case? 

Mr. Innes. AVe are both ready. Mr. Chairman. 

The Chairman. The meeting has been called this morning for the 
purpose of hearing argument in the case of Francis J. Horgan. con- 
testant, against George Holden Tinkham, contestee. The contest is 
from the eleventh congressional district of Massachusetts. Who ap- 
pears for the contestant? 

Mr. Prout. William C. Prout. 

The Chairman. Mr. William C. Prout appears for the contestant. 
Who appears for the contestee? 

Mr. Innes. Charles H. Tnnes. 

The Chairman, (lentlemen, liave you any idea as to how much 
time you desire to argue this case? 

Mr. Prout. What is the custom? Is it customary to allow the 
contestant any time for rebuttal? 

The Chairman. Yes; the contestant will have the right to open 
and to reply. 

Mr. Prout. I would not want to limit myself to anything less than 
one hour on the first argument. 

The Chairman. On your opening argument? 

Mr. Prout. Yes. 

The CiiAiRarAN. How much time will you want, Mr. Tnnes? 

Mr. Innes. I do not know. It Avill depend someAvhat upon what 
i3rother Prout has to say. I did not intend to cover anything he 
covers. 

The Ciiair:man. If in the course of the argument anyone wants 
further time, it is always given by the committee. We are very 
liberal about that. The only i:)oint is, we want to get some kind of a 
tentative idea as to about how long you think you will he. You 
think you will be about one hour in your opening statement, and you 
think you will want about one hour. Mr. Innes ? 

Mr. Innes. About one hour, Mr. Chairman: yes. 

The Chairman. And how long will you want in reply? 

Mr. Prout. I do not imagine over 15 or 20 minutes. 

The Chairman. Half an hour? 

Mr. Prout. Half an hour at the outside. I should say. 

The Chairman. That can be changed later, if the committee so 
desires. 

3 



4 CONTESTED-ELECTION CASE HORGAN VS. TINKHAM. 

Mr. Rogers. May I ask if it is your intention, Mr. Chairman, to 
push this matter to a conclusion to-day? 

The Chairmax. If possible ; if it is not possible, we will meet to- 
morrow. The House meets to-day at 12 o'clock, and therefore we 
will have two hours. Mr. Prout, you may begin. 

STATEMENT OF MR. WILLIAM C. PROUT, ATTORNEY FOR MR. 
FRANCIS J. HORGAN, CONTESTANT, 

Mr. Prout. Mr. Chairman and gentlemen of the committee, this is 
a contested-election case from the eleventh Massachusetts district. 
Briefly, for the information of the committee, the district is com- 
posed wholly of wards AYithin the city of Boston, including ward 10, 
the whole of ward 11 with the exception of two precincts, and wards 
12, 18, 19, 21, 22, and 23. 

The Chairman. Will you please repeat the numbers of those 
wards ? 

Mr. Prout. Ward 10; the whole of ward 11 with the exception of 
two precincts, there being nine precincts in the ward; wards 12, 18, 
19, 21, 22, and 23. 

Mr. Russell. ^'\^io represented this district in the last Congress? 

Mr. Prout. Andrew J. Peters, and the district has been represented 
by Democrats since its formation 10 or 12 years ago. The make-up 
of the district and the political complexion of the district I will touch 
on a little later. 

In order to get down as rapidly as possible to the meat of the case, 
I would like to say that the contest is based on several grounds, in- 
cluding bribery, the use of liquor, deception of voters by postal cards 
sent out from one end of the district to the other linking the name of 
the Democratic candidate for governor and the Republican candidate, 
the contestee, for Congress, and a conspiracy between the Democratic 
leader in the district and the contestee, the Democratic leader being 
a member of the Senate and chairman of the Democratic city com- 
mittee of Boston ; and also an allegation that the contestee's returns, 
as filed with the secretary of state in Massachusetts, were not in 
accordance with the Massachusetts corrupt-practices act. 

On the question of bribery, the bribery consists in the payment of 
certain small sums of money to individual voters in the district, 
including the payment of money to one Dolan, as testified to on page 
307 of the record; one Purcell, as testified to on pages 112 and 235 
of the record ; that amount of money being 

The Chairman (interposing). Mr. Prout, is that set out in your 
brief, just for my information? 

Mr. Prout. Yes; the references are made in the brief and the 
different subheads are set out and you can find in the index of the 
brief an outline of the brief. 

In the case of Purcell the bribery alleged consists of allowing Purcell, 
who was a Democratic voter, to retain for his own use the unexpended 
balance which was given to him by the contestee for the purpose of 
sending out these postal cards referred to as the " Walsh-Tinkham 
postal card," Walsh being the Democratic governor and a candidate 
for relection and ]Mr. Tinkham being the Republican nominee for 
Congress; also money paid to one Sheppard, referred to on page 493 



CONTESTED-ELECTION CASE HOEGAN VS. TINKHAM. 5 

of the record, Mr. Sheppard being a negro voter who was paid $27.85 
under the heading of posters. 

Mr. R-VMSEYER. ITnder the heading of what? 

Mr. Proltt. Posters; also the payment of $58.75 to one Mason, 
another negro voter, who Avas paid that monev for the purpose of 
having a rally, but there was no itemized account as to his expendi- 
tures and no evidence as to how the money was expended. 

Mr. Tillman. What is the reference to Mason ? 

Mr. Pkoitt. Page 492. There is also considerable evidence of 
bribery AThich is not of specific sums and not on the admission of the 
individuals to whom it was paid, but rather in the nature of general 
testimony, which is valuable more because of the cumulative effect of 
it than be.:;ause of the value of any isolated instance. This testimony 
includes, among other things, the testimony of one Devlin, on page 
127, who saw Senator Timilty paying out money to voters, and Sena- 
tor Timilty, we claim, in so doing was acting as the agent of the 
contestee. Also the evidence of one Lally, on pages 290-296 and 
305. containing various instances of the payment of money to the 
voters and the use of liquors. Also the testimony of one White, on 
page 809, who testified as to the payment of $10 to one Killilea. Also 
the testimony of one Brosnahan. on page 285, Avho testified to the 
payment of $50 to the secretary of an organization known as the 
Kearsarge Club. Also the testimony of one Keyes. on page 339, 
who testifi'^d as to the payment of $1.25 to him and the giving to him 
of 10 or 12 small vials of whisky for distribution among the voters. 
That also comes under the heading of the use of liquor as well as the 
distribution of money. 

There was also the testimony of one Frederick J. McLaughlin, on 
page 250 of the record, a man Avho is the circulation manager of the 
largest women's publication, probably, in the United States, and a 
man of standing in the community, whose testimony was disposed of 
with a wave of the hand by the contestee, but who testified that one 
Duffin, a law partner of the contestee and a man very closely associated 
with him. who testified that he was in a position to know the facts in 
connection with the contestee's political campaign, and ^McLaughlin 
testified that Duffin stated to him. as appears in the record, that the con- 
testee had barrels of money and they, meaning the contestee and his 
agents and servants, spent it on the election like drunken sailors; and 
furthermore that they had put the thing across, to use his oAvn words, 
but they felt that the contestant could not prove it. That evidence 
being the admission of one so closely connected with the contestee in 
his law practice and in the political campaign is certainly entitled to 
great w^eight and certainly is demonstrative of the excessive use of 
money and the bribery and corruption of the voters. In addition to 
these instances, there are several instances of the distribution of 
money under the guise of purchasing tickets for dances and balls of 
organizations, some of which probably existed and some of which 
probably had no existence whatsoever. That is referred to in the 
testimony of one of the contestee's witnesses — I beg your pardon, one 
of the contestant's witnesses — who was a supporter of the contestee, 
on page 301, 302, and 303. of the record, and in the testimony of con- 
testant on pages 358. 359. 360, and 363. Xow. with regard to the 
question of the use of liquor, which is also of some importance, that 



6 CONTESTED-ELECTIOlSr CASE HOEGAlSr VS. TINKHAM. 

is referred to in the testimony of one Crimmins on page 202, Avho 
testified that liquor was dispensed freeh^ in private houses in ward 18, 
that being the ward dominated by Senator Timilty, and in the testi- 
mony of Keyes on page 338, ah^eady referred to, in the distribution of 
vials of whisky, and the testimony of William J. Kelley, pages 209, 
210, 211, and 212, who testified as to the distribution of liquor in 
"various barrooms, the owners of which were friendly to contestee, 
and supporters of his. The testimony of one Lally, on pages 290 and 
296, who testified as to the purchase of liquor b}^ Craven, another of 
contestee's supporters, in a hotel on election day. 

Now, the matter of the use of liquor by contestee is disposed of by 
him in his brief in rebuttal by the statement that in Massachusetts 
on election day the. barrooms have to close ; consequently there could 
not be any distribution of liquor on election day. Our reply to that 
is that, although the common, ordinary barrooms have to close, the 
extraordinar}'' kitchen barrooms, of course, are always open on Sun- 
days, holidays, and any other time, and also any liquor place which 
happens to have a hotel license — and there is a great many of them 
in the district — are allowed to remain open and do business just as 
on any ordinary day of the week; and on the testimony of the wit- 
nesses referred to we claim that there was a widespread, illegal dis- 
tribution of liquor by the contestee and his agents and supporters. 

Now, the next matter which I desire to refer to is the deception of 
voters of one ward — ward 22 — by the printing and distribution of 
the post card referred to as the Walsh-Tinkham post card. 

The Chairmax. Pardon me a minute, Mr. Prout. Is this a copy 
of that post card? 

Mr. Innes. Yes. 

Mr. Prout. Yes ; that is one of the post cards Avhich was sent out. 

The Chairman. It is agreed that this post card [Exhibit No. 1] 
is the card know^n as the Walsh-Tinkham post card. 

Mr. Russell. Dees the record show, or is there any way to know, 
how many of these postal cards were mailed out ? 

Mr. Peout. Yes; the record will show that in the testimony of 
Pur cell. 

Mr. lN>fES. The printer's bill, I think, shows how much he paid 
for them. 

Mr. Russell. If the record shows that 

Mr. Prout (interposing). The record, on page 112, in the testi- 
mony of Purcell, will show there were approximately 2,000 of these 
cards sent out in one ward, that being ward 22. Now, the contestee 
and the men who signed the post card admit that both signers of the 
post card are registered, enrolled Democrats ; that both are employed 
by the New York. New Haven & Hartford Railroad, and they got 
up a card containing the names of the Democratic candidates for the 
house — that is, the Massachusetts house — and contestee's name, and 
presented that card to the contestee, and after the conference with 
him it was changed so as to include the name of the Democratic can- 
didate for governor and his own name; that he paid these men $40 
to cover the cost of getting this out; that they had it printed and 
distributed it in ward 22. 

Mr. Russell. Did I understand you to say that the contestee admits 
that he paid for printing the card ? 

Mr. Prout. Yes. 



CONTESTED-ELECTION CASE HOKGAN VS. TINKHAM. " 

Mr. Russell. And it -was done with his knowledge and consent? 

Mr. Prout. He paid for it and a change was made in the form of 
it after conference with him. 

Mr. Magee. I notice the card is signed by two gentlemen. Is it 
your contention that the signatures were put on the card Avithout 
authority? 

Mr. Prout. No, sir ; they both testified and the contestee testified 
that they put their signatures on themselves. 

Mr. Tillman. You say they are known Democrats? 

Mr. Prout. They are enrolled Democrats, or were at that time. In 
jSIassachusetts we have a system of party enrollment and the voters 
who desire to take part in a party caucus are obliged to enroll them- 
selves as members of one party or the other. 

The Chairman. Now, Mr. Prout, what point do you make about 
this postal card? 

Mr. Prout. AVhat point ? 

The Chairman. Yes; what is your point; that it was illegal to 
send this out ? 

Mr. Prot T. We do not make any claim of illegality as far as con- 
formity with the ordinances of the city of Boston or the State of 
Massachusetts is concerned, but we do say that it is an unfair attem})t 
to mislead the voters of the district and that, as a matter of fact, it did 
deceive and mislead a certain number of them, and that it comes un- 
der the ruling laid down in the case of Bradley i\ Slemons. 

Mr. Russell. May I ask whether the contestee and his organization 
were supporting Walsh ? 

Mr. Prout. Pardon me just one moment — that reference is 2 Hinds, 
938. The contestee and his organization were not supporting Walsh, 
but the idea of sending this card out was to confuse the voters and 
give them the idea that Gov. Walsh, a popular Democratic governor, 
Avho was then governor and candidate for reelection, Avas running on 
the same ticket or in some way was identified with the Republican 
candidate for Congress. They were not supporting each other and 
had no connection. The contestee does not claim that he supported 
Walsh or that AValsh supported him. 

Mr. Ramseyer. How long before the election were these cards 
mailed out? 

Mr. Prout. The election was on Tuesday, and I believe the cards 
were mailed on the Saturday before. 

Mr. TiLLJNiAN. Are these Democrats well known and popular 
people or are they obscure men, and w^ould their names on a card 
of this kind attract the attention of Democrats all over the city 
and cause them to get the impressfon that they were speaking for 
those two names on the ticket, or are they obscure Democrats and 
not well known to the electorate? 

Mr. Prout. Both of them are fairly well known, and one is a 
son-in-law of a former chairman of the Democratic ward committee. 

The Chairman. INIr. Prout, is there anything to show that Pur- 
cell or Reynolds objected to the use of their names, or did they allow 
the use of their names? 

Mr. Prout. They allowed the use of their names. They both 
testified on the stand that they were not acquainted with Mr. Tink- 
ham until shortly before the primaries; that he had never done any- 
thing for them, and they did not know Mr. Horgan and knew 



8 CONTESTED-ELECTION CASE HOEGAlsr VS. TINKHAM. 

neither good nor evil about eitlier one of the candidates, and there- 
fore they had absohitely no motive for sending out these cards, and 
we question their motive in sending them out. 

Mr. Rogers. It was testified, was it not, that Mr. Tinkham paid 
for these cards? 

Mr. Prout. Yes. 

Mr. Rogers. Do you recall whether the item was entered in Mr. 
Tinkham's campaign return? 

Mr. Prout. That I can not say, but I presume it was; yes. 

Mr. Innes. It was. Incidentally, I might say here, if you are 
going into this question, Mr. Prout, I know you want to have it 
correct, Mr. Purcell did testify that the barber who shaved Mr. 
Tinkham at the athletic club was a friend of his and that was the 
reason he gave for interesting himself. 

Mr. Prout. Yes; that is correct. The only reason that Mr. 
Purcell could give for taking an interest in this matter, although 
an enrolled Democrat, in behalf of a Republican nominee, was 
that the barber who had shaved Mr. Tinkham or habitually shaved 
Mr. Tinkham at the atheletic club, asked him to interest himself 
in Mr. Tinkham's behalf ; and he did and persuaded Reynolds to do 
the same, although Reynolds was the son of a former chairman of 
the Democratic ward committee, and I believe Purcell was a son-in- 
law of another former chairman of the Democratic ward committee. 

The law which I refer to as tending to show that this was an un- 
fair, if not a positively illegal way to conduct a campaign, is set 
out in the case of Bradley v. Slemons 

Mr. Magee (interposing). Is it your contention that there is any 
statute in the State of Massachusetts under which the sending out 
of this card might be held to be an illegal act? 

Mr. Prout. No; I say, as far as the statute of Massachusetts in 
connection with sending out political literature is concerned, there 
was no violation of that statute. The statute simply requires that 
the card be signed by one person and have his address on the card; 
but in the case of Bradley v. Slemons, which was decided by the 
Committee on Elections of the House, in which case a similar act 
was committed, the committee not only thought that it was a thing 
which should not have been done, but in their report said: 

We now come to the consideration of tlie most important point made by 
tlie contestant in liis brief and arguments — the circuhition of false and fraudu- 
lent posters in Chicot County a few days before the election. 

That was a case in which posters were placarded throughout the 
district several days at least before the election, so that the other 
candidate had an opportunity to see them and correct any damage 
they did, while in this case it was a matter of sending out postal 
cards on Saturday evening, they being received by the voters on 
Monday morning, the very day before the election, which allowed 
the other candidate absolutely no opportunity to make any explana- 
tion or to refer to them in any way. 

The committee in that case went on to say : 

The object was evidently to deceive the Republican Party in that county 
and thus induce that vote to be cast for Slemons and a vote which was sup- 
posed otherwise would have been cast for contestant. It was a shallow device, 
dishonorable to those engaged in the transaction, and deserves the emphatic 
condemnation of every friend of free and fair elections, and if the testimony 



CONTESTED-ELECTION CASE HOEGAN VS. TINKHAM. \) 

was .suHicient to estabiisli tlie coinplicity of conlestee v.ith an act so dis- 
lioiiorahle, and when satisfied that its effect upon tlie voters niMihiced a result 
different from that wlucli otherwise would have occurred, we would not 
hesitate to reconiuieud that the election he set aside an<l a new one ordered. 

Now. we do not contend that there was any express statute, either 
of the State of JMassachiisetts or of the United States, which was 
violated, but we contend that it was absokitely unfair, and, as the 
committee in this case said, if it deceived a sufficient number of 
voters into voting a way in which they would not otherwise have 
voted, and we contend that the vote in ward 22 does sIioav that was 
the case, we ask your committee to follow the rule laid down in the 
case of Bradley v. Slemons and decide the case, so far as the vote 
of that ward is concerned, for the contestant. 

Mr. Eamseyer. Is that a rule laid down by the courts of Massa- 
chusetts ? 

Mr. Prout. That is a decision by a committee on contested elec- 
tions. 

Mr. Ramseyer. Of Avhat? 

Mr. pROUT. Of the Ignited States Congress. 

Mr. Innes. We have referred to that case on page 98. That was 
before the Australian ballot law 

Mr. Prout. I can not yield for any argument, IVIr. Innes. If I 
make any misstatements, I would be glad to have you call my atten- 
tion to them, but I can not yield now for an argument. 

The Chairman. In your brief you refer to the one-way circular. 
Is that what you are referring to? 

Mr. Prout. No sir; the one-way circular is another circular that 
I will refer to later. The Massachusetts corrupt-practices act was 
not passed until 1914, as it was amended, and there have been no 
decisions under the Massachusetts act on any of the matters referred 
to there. 

Mr. Ramseyer. I understand that your reference is to Hinds' 
Precedents. 

Mr. Prout. Yes, sir. 

Mr. Russell. Was there any positive proof as to the effect of those 
postal cards? I believe you said it was done in one ward and that it 
did have an effect. 

Mr. Prout. They were sent to but one ward ; they were only sent to 
ward 22. Two thousand of them were sent to Democratic voters, and 
they were sent only to Democratic voters. 

Mr. Russell. How do you establish the fact that the postal cards 
had any effect on the election ? 

Mr. Prout. The only way we have to try to establish that is to 
point to the fact that they were sent out on the last day prior to the 
election, and to the fact that the vote in that Avard sho\\s that there 
was an influence which did not affect the voters, and there is also the 
testimony of the contestant, in which he refers to specific cases. 

Mr. Russell. How many votes did the contestant run Ijehind the 
Democratic ticket in that ward ? 

Mr. Prout. The contestant ran about 500 votes behind the Demo- 
cratic ticket in that ward — that is, behind the lowest man on the 
Democratic ticket. 

Mr. Russell. Did the contestee run ahead of the Republican 
ticket? 



10 CONTESTED-ELECTIOjST case HOEGAlSr vs. TIlSrivHAM. 

Mr. Prout. The contestee ran ahead, not only of the Republican 
ticket but ahead of the Republican nominee for governor, Hon. 
Samuel W. McCall, whom he says Aviis one of the ablest and most 
widely known Republicans in the State of Massachusetts. 

Mr. Magee. How far did he run behind Gov. McCall? 

Mr. Prout. Gov. McCall got 1,412 votes and Mr. Tinkham got 
1,972. That was in ward 22, in which those post cards were sent out. 
Mr. Tinkham got 560 votes more than the Republican candidate for 
governor, whom he says in this brief is one of the ablest and best- 
known public men in Massachusetts. 

Mr. Magee. What ward does Mr. Tinkham live in ? 

Mr. Prout. He lives in ward 11. The vote as between the Demo- 
cratic candidate for governor and the contestant in that ward, ward 
22, was, for Gov. Walsh. 2,562 votes, and for contestant. 1,951 votes, 
showing a difference of almost 600 votes in either case — that is to say, 
the contestant ran about 600 votes behind the Democratic candidate 
for governor, while the contestee ran about the same number of votes 
ahead of the Republican nominee for governor. Now. we come to 
the alleged conspiracy. 

Mr. Rogers. I think it is quite an interesting consideration as to 
whether the running ahead of his party by one man as compared 
to the rest of his own ticket and the running behind of a man as 
compared with the rest of his ticket is evidence of something un- 
lawful or illegal. Have you any authority quoted in your brief 
on that point? 

Mr. Prout. Yes, sir. Before coming to the law, however, I would 
like to call your attention to the fact that that same disparity is 
shown in every case. It is not confined to the comparison between 
them and the candidates for governor; the comparison applies not 
only to the candidates for governor, but to all the other candidates; 
it applies to the candidates for the house; to the candidates for the 
senate; and to the candidates for lieutenant governor. 

Mr. Rogers. Did Mr. Tinkham run well ahead of his ticket ? 

Mr. Prout. Mr. Tinkham ran ahead of every candidate on his 
ticket. 

Mr. Rogers. And Mr. Horgan ran behind every candidate on his 
ticket ? 

Mr. Prout. Yes, sir. 

Mr. Magee. In how many other wards? 

Mr. Prout. Mr. Tinkham ran ahead of his ticket in other wards, 
but not as far ahead in any other ward as in this particular ward. 
Later on I will give the percentages showing how he ran. Now, in 
reply to Mr. Rogers's request as to whether we have any legal 
authorities on the question of the weight of such comparisons, I 
AYOuld call the attention of the committee to the case of Small v. 
Tillman (2 Hinds' Precedents, par. 968), in which it was held that 
it was established beyond question that a comparison of the votes 
may be taken as legal evidence of fraud, corruption, intimidation, 
or bribery. In that case it was held that the returns of a former 
election were proper evidence to corroborate proof of intimidation 
and fraud. In this case we are relying not only upon the returns 
of a year or two years before, but in addition to that we are also 
relying upon a comparison of the returns for the very year in which 
this election was held. The law on that point is also upheld in the 



CONTESTED-ELECTION CASE HORGAN VS. TINKIIAM, 11 

case of Smith r, Shelley (2 Hinds' Precedents, par. 965), wherein 
the votes of previous elections and the nature of the population 
were cited to establish a presmnption as to the political preference 
of the district. 

JNIr. Rajiskveij. You do not claim that that alone is evidence of 
fraud, do you? 

Mr. Pkout. No. sir: we consider that a suspicious circumstance, 
taken together with the other elements. As was stated in the case 
of Sullivan r. Felton (2 Hinds' Precedents, par. 1016), "Where the 
vote returned showed a change as compared with the vote of the 
preceding election, a majority of the committee consider suspicious." 
While we are on that point I might say, in connection with the 
charge of conspiracy, that the very nature of the charge is such that 
you can not get direct, specific proof of the fraud and bribery, or 
of the actual jjassing of the money, or of the actual conspiracy; 
the nature of the act is such that the members who are most in- 
terested are animated by the same object, namely, to keep it (juiet. 
In most instances they are the only ones who are parties to the 
fraud, and is a well settled jn-inciple of law, as laid down in the 
case of Mitchell v. Walsh (2 Hinds' Precedents, par. 263) 

Mr. Ramseyer (interposing). Had Mr. Tinkham held office be- 
fore ? 

Mr. Proitt. Mr. Tinkham had held office as an alderman of the 
city of Boston, and he was also in the State senate from his own 
Avard — ward 11. He was a member of the city council, which w^as at 
that time composed of 75 members, representing his own W' ard ; and 
he also represented his own ward and ward 10, both of which are in 
this congressional district, in the Massachusetts State Senate. 

Mr. RA]\rsi<:YER. Are the wards he represented in council and those 
he represented in the State senate Democratic? 

INIr. Prout. Xo, sir; both of them are Republican wards. They 
are the strongest Republican wards in Boston. 

Mr. Ra^iseyer. But the congressional district is Democratic? 

Mr. Prout. We contend that the congressional district is Demo- 
cratic. It has always been Democratic, with this single exception, 
and it is Democratic now 

Mr. Ramseyer (interposing). What majority do you claim for 
Mr. Horgan? 

Mr. PRt)UT. Two years ago Congressman Peters defeated his Re- 
publican opponent by a vote of 17,000 to 9,000. 

Mr. Russell. Was that a plurality? That v\as not the majority, 
was it ? Was there a Progressive ticket in the field ? 

Mr. Prout. No, sir; there was no Progressive ticket. That was a 
contest between the Republican candidate and Democratic candidate. 

Mr. Russell. It was that nnich majority and not plurality? 

Mr. Proitt. That was the majority. 

Mr. Ra:mseyer. Has it been running that way all along? 

Mr. PuouT. It has always been Democratic. 

Mr. Ramsey-^er. By that nuijority? 

Mr. Prout. No, sir; that vote of 17,000 to 9,000 was exceptional. 

Mr. Magee. What do you call the normal majority? 

Mr. Prout. The normal Democratic plurality, as shown by the 
average Democratic vote for everything, is something like 2,800 



12 CONTESTED-ELECTION CASE HOEGAN VS. TINKHAM. 

votes. Taking the vote for candidates generally it would show a 
Democratic plurality of something like 2,800 votes. 

Mr. Magee. What was Mr. Tinkham's plurality? 

Mr. Prout. Mr. Tinkham's plurality was 1,047 votes. In reply to 
the question as to his representation in other offices, in 1909 he re- 
ceived 1.922 votes in ward 10 for the senate. That ward, as I said 
before, is a Kepublican ward. In 1910 in the same ward he received 
1,734 votes for the senate; in 1911 he received in that ward 1,829 
votes for the senate, Avhile in 1914, as a candidate for Congress, he 
received in the same ward 1,601 votes. In ward 11, which is his own 
ward, as a candidate for the senate he received in 1909, 1,980 votes ; 
in 1910 as a candidate for the senate in the same ward he received 
1,808 votes ; in 1911 as a candidate for the senate he received in the 
same ward 1,904 votes, while in 1914, as a candidate for Congress, 
he received in the same ward l/>43 votes. There Avere two precincts 
missing, however, Avhen he ran for Congress, which would change 
that from 1,643 votes to something in the vicinity of 1,800 votes or 
1,850 votes. This statement shows, however, that in spite of the fact 
that he had represented those wards in the senate, instead of growing 
stronger he grew progressively v/eaker. 

Mr. Magee. What is the city council? To what body does that 
correspond ? 

Mr. Prout. It has been been abolished now for about 8 or 10 
years. It was formerly made up of three councilmen from each of 
the 25 wards of the city of Boston. 

I have just referred to the case of Mitchell v. Walsh (2 Hinds' 
Precedents, par. 263), showing the well settled law as to the amount 
of proof and the character of proof required in a case Avhere con- 
spiracy^ or fraud is alleged. In that case the committee said : 

Fraud can rarely, if ever, be proven by direct evidence, and the rule is tliat 
whenever a sufficient number of independent circumstances, wliicli ix)int to its 
existence, are clearly established, a prima facie case of its existence is made, 
and if this case is not met with explanation or contradiction it becomes con- 
clusive. 

That rule is also followed in the case of Noyes v. Rockwell, in the 
Fifty-second Congress, Rowell's Digest, page 716, and also in the 
case of Donnelly v. Washburn (2 Hinds' Precedents, par. 945), 
wherein it was held : 

It must not be forgotten that bribery is a secret crime ; both the parties to 
it are equally interested in keeping it secret ; and where detected both are 
ready to give ingenious explanations of it. 

That rule is also upheld in the case of Abbott v. Frost (2 Hinds' 
Precedents, par. 917), which was a Massachusetts case. In that case 
it was said: 

In a great majority of cases it is impossible to prove a charge of bribery by 
•direct and positive testimony. From the very nature of the case the only source 
from which such testimony can c<nne is from the briber or the bribed, both of 
Whom are criminals. 

In the case of Moore v. Funston (2 Hinds' Precedents, par. 1052), 
it was held : 

The text writers and other law authorities treating of the subject recognize 
the difficulty of proving conspiracy by direct evidence ; and as in the case of 
fraud in general recognize also the propriety as well as necessity of proving 
distinct facts, many of them insigniticant in themselves, from all of which. 



CONTESTED-ELECTION CASE HOKGAN VS. TINKHAM. 13 

however, where sufhcieiU. a linn helief in tlie existence of the consph-aey or 
fraud may safely he deduced, and the conclusion may he a safely acted upon. 
In many cases circumstantial evidence is the only evidence which can he 
obtained, and it is also not infrequently of the most satisfactory and convincing 
character. 

That doctrine is so well established that I will not bore the mem- 
bers of the committee with an}' further quotations concerning it. 

I will now pass to the next subhead, which is really the principal 
subheading' and the principal allegation of the contestant, and that 
is the allegation of conspiracy with one James P. Timilty, a Demo- 
cratic senator, Avhose senatorial district comprises three wards, Nos. 
18, 19, and 22, all of which are wards in this congressional district, 
Mr. Timilty also being the president of the Democratic city com- 
mittee, and being, therefore, in an official position in the Democratic 
Party. Now, before proceeding on that line, I would like to state 
that we admit that Mr. Timilty would have the same right that any 
other citizen has to support any candidate that he sees fit, Avhether 
Democratic, Republican, Progressive, or Socialist. He would have 
that same right to A^ote for him and to support him publicly, if he so 
desired, if it were not for the fact that party machinery is a thing 
which is recognized by the laws of the State of Massachusetts, and 
in Massachusetts even to a greater extent than in some other juris- 
dictions, because in Massachusetts if a man is a Democrat he is 
obliged to go and record himself as such publicly, and it becomes a 
matter of official record that he is a Democrat. The same thing, of 
course, applies to the other political parties. The election machinery 
statutes recognize and provide for the formation of political com- 
mittees for the various political parties, both ward committees and 
city committees, and we maintain that Mr. Timilty — admitting that 
he had the right as a private citizen to do as he saw fit — as president 
of the Democratic city committee, a senator elected by Democratic 
votes to the Massachusetts State Senate, and representing a Demo- 
cratic constituency, had not the right to come out openly and publicly 
and support a candidate on the opposing ticket. 

The Chairman. In order that I may get your argument in a nut- 
shell, let me state the matter this way: Suppose Mr. Timilty all 
through that campaign had led the contestant to believe that he was 
for him ; suppose all through the campaign he would come to him or 
send messages to him leading him to rely upon his support, and 
then at the eleventh hour had betrayed him, if you wish to express 
it that wa}', or if at the eleventh hour he had turned over and sup- 
ported the contestee, is it your contention that he did anything un- 
lawful ? I admit that such a thing woiild be most unfair, to say the 
least, but what I want to know is whether under the laws of Massa- 
chusetts that is illegal? 

Mr. Prout. That in itself is not illegal, and that is just exactly 
what he did. 

The Chairman. You see what I am thinking about? 

Mr. Prout. Yes, sir ; and that is exactly what he did. 

Mr. MaOxEe. Was Senator Timilty running for reelection? 

Mr. Prout. Yes, sir; he was running for reelection at the same 
time. He did mislead the contestant; he did lead the contestant to 
believe that he was supporting him and doing everything in his power 
for him. It is a fact that on the night before election, in the ward 



14 CONTESTED-ELECTION CASE HOEGAN VS. TINKHAM. 

where the headquarters were established, at the Democratic chib 
which Mr. Timilty organized, Mr. Horgan made a speech. Mr. 
I'imilty introduced him there in the most gloAving terms, and he 
publicly told the voters that he hoped they would support Mr. 
Plorgan, but immediately after that he took up his station at the 
door on that night and the next day and instructed the voters not to 
T'ote for the contestant but to support Mr. Tinkham. Now, in itself 
there was nothing unlawful about this, and if that had been as far 
as it went the contestant would not have made this complaint, but the 
point of the case is this: When Mr. Timilty was sworn as a v/itness, 
if he had gone on the stand and admitted all of that, that would 
probably have ended it, but instead of doing that, and in spite of the 
fact that everybody about Boston knew the facts, in spite of the fact 
that everybody in Boston knew that Timilty had supported Tinkham 
and was responsible for his election, after Mr. Timilty had publicly 
stated that he had supported Tinkham, he goes upon the stand and 
under oath deliberately testifies that he supported Mr. Horgan; that 
he went right through with Horgan all day election day until 4 o'clock 
when the polls closed. Now, this is not only a very suspicious cir- 
cumstance, but it is the best kind of circumstantial evidence of some- 
thing illegal. Why did Mr. Timilty want to conceal his support of 
Mr. Tinkham? Everybody knew that he had instructed the voters 
of his ward to support Tinkham. He did not do this for the purpose 
of concealing his support of Tinkham, because the voters of his ward 
and the voters of the district at large knew about it. Therefore, 
there must have been some ulterior motive for committing this 
perjury 

Mr. Ramseyer (interposing). You say that everybody knew it. 
Did they know^ about it on election day, or after the returns came in ? 

Mr. Prout. It was known by all persons interested at all in politics 
for about tw^o days before election day. 

Mr. Ramseyer. Mr. Horgan knew^ about it ? 

Mr. Prout. Mr. Horgan was advised of it on Saturday before elec- 
tion day and w^ent to see Mr. Timilty about it. He received assur- 
ances from Mr. Timilty that it was not so. Then Mr. Maylard, the 
former chairman of the city Democratic committee and who is now 
the surveyor of the port of Boston, went to see Mr. Timilty and tried 
to persuade him not to do this, and Mr. Timilty said there was no 
truth in it, and that he was not going to do it. It was done, hoAvever, 
and he fully intended to do it. 

Mr. Magee. You spoke of perjury. Was this evidence taken under 
the order of any court, or Avas it simply taken in the form of depo- 
sitions ? 

Mr. Prout. This evidence Avas taken before magistrates AAdio AA'ere 
selected or appointed in accordance AA-ith the proAdsions of the United 
States statutes. They administered oaths to the AAdtnesses who tes- 
tified. 

Mr. Tillman. Did they haA^e authority to administer oaths? 

Mr. Prout. They AA'ere justices of the peace or notaries public. 
The particular magistrate AAdio administered the oath to Mr. Timilty 
was a justice of a State court, the Roxbury district court. 

Mr. Magee. Did they issue subpoenas for the AAdtnesses? 

Mr. Prout. Yes, sii' ; the witnesses AA'ere summoned to testify. Mr. 
Timilty appeared under a summons and under protest also. 



< 



CONTESTED-ELECTION CASE HORGAN VS. TINKHAM. 15 

Mr. Tillman. Nobody actuall}^ s^aw the ballot voted by Mr. 
Timilty ? 

Mr. PnocT. Xo. sir; nobody did see his ballot. 

Tlie CiJAiifMAx. That is a secret ballot? 

Mr. Proht. Yes, sir; we have a secret ballot in Massachnsetts. 

The Chairman. You have a blanket ballot with the names of the 
candidates of all the parties on one sheets' 

Mr. Prout. Yes, sir. 

The Chairman. Then you mark a cross in front of the name of the 
candidate for whom you want to vote? 

Mr. Prout. Behind his name, to be precise. 

The Chairjian. I think Ave have about the same form of ballot. Is 
there any provision under your ballot for voting a straight ticket by 
making a circle aboAe the names of the candidates of any party? 

Mr. Prout. No, sir. 

The CiiAiRJMAN. You must mark the name of everv man vou vote 
for? 

Mr. Prout. Yes, sir ; except in the case of ward contests 

Mr. Ramseyer (interposing). For instance, are the names of the 
candidates on the Democratic ticket in the same column and the names 
of the Republican candidates in another column? 

Mr. Prout. No, sir; the names of the candidates are arranged 
alphabetically. For instance, the names of all the candidates for 
governor are arranged alphabetically in one column and the names 
of the candidates for lieutenant governor are arranged alphabetically 
in another column. 

The Chairman. With their party designation? 

Mr. Prout. Yes, sir; with the party designation after the name. 

Mr. Tillman. Have yon a provision of law that will enable you 
or a forum of proper jurisdiction to open up the l)allot lioxes and 
ascertain exactly hoAv parties voted? 

Mr. Prout. It is impossible to ascertain how parties vote, except 
wdien a person who goes to vote has his vote challenged 

Mr. TiLL^iAN (interposing). You do not number the ballots you 
put in the box ? 

Mr. Prout. No. 

Mr. Tillman. And there is no check on the ballot after it goes in. 

Mr. Pi.'ouT. INIr. Timilty. when testifying, refused to testify for 
whom he voted, as, of course, lie had a perfect right to do. There is 
a good deal of discussion in the brief in rebuttal of the contestee as 
to our asking witnesses for whom the}' voted. We recognized it Avas 
the constitutional right of any voter in Massachusetts to refuse to say 
for whom the voted, but we also claim, as has been decided in in- 
numerable election cases before committees of Congress, that any 
person has a right to ask that question and the witness may answer 
if he sees fit. In this particular case, although Timilty testified he 
supported Horgan; when he was asked for Avlioni he voted he declined 
to state. 

Mr. Ramse^-er. Mr. Prout, you stated a Avhile ago that your laAv 
provides that a man goes on record as to Avhether he is a Democrat or 
a Republican. How does he make that record? 

Mr. Prout. In going to vote at a party caucus 

Mr. Ramseyer (interposing). A primary? 



16 COJ^TESTED-ELECTION CASE HOEGAISr VS. TINKHAM, 

Mr. Prout. The primaries of all parties are held in the same 
voting places and the voter comes in and asks for a ballot in order 
to vote, and he is required to state which party ballot he votes, and 
then a record is kept of that voter and his party preference, and he 
can not change that preference without giving three months' notice. 

Mr. Magee. Is it your contention that Mr. Tinkham would not 
have been elected except for this activity of Senator Timilty on his 
behalf? 

Mr. Pbout. Yes; principally that; and also certain minor things 
which appear in the evidence which I will refer to as we go along. 

Mr. Magee. But that is your main ground, is it ? 

Mr. Prout. That is really the principal ground, the connection 
with Timilty. 

Mr. Magee. I mean as to the result of the election. 

Mr. Prout. As to the result ; yes. 

Mr. EussELL. Does the contestee admit or deny that Timilty sup- 
ported him? 

Mr. Prout. There is a little difference of opinion as to whether he 
admits it or denies it. 

Mr. Innes. The testimony shows it. 

Mr. Prout. He was examined on that point, and Mr. Innes was 
rather upset because of the manner in which the contestee's counsel 
handled that matter in their brief. The testimony on that point, 
which I might as well cover now as long as we are considering it, is 
contained on page 483 of the record, contestee being on the stand and 
being examined by his own counsel : 

Q. While we are on that, did you have any deal or trade with Senator 
Timilty about his double-crossing Mr. Horgan and supporting you? — A. I had 
none whatsoever, nor did I know that he was going to. 

Q. (By Mr. Innes.) Well, you don't know that he did? — A. I don't know 
that he did. He says he did not. 

Mr. Magee. What page is that? 

Mr. Prout. Page 483 of the record. 

The Chairman. Who is testifying to that? 

Mr. Prout. Mr. Tinkham, the contestee, and again on pages 503 
and 504 of the record, Mr. Tinkham being cross-examined by attor- 
ney for the contestant: 

Q. And if I should recall to your mind that on the day after election in the 
news columns of the Transcript it was stated unequivocally that Senator 
Timilty had turned his ward over to Senator Tinkham, would you say that that 
was apt to be true? — A. I think the paper is a very conservative paper. I 
would not want to say that every statement that was made in the Transcript 
^^as photographic truth. 

Q. Do you know that several other Boston papers, immediately after the 
election and at various times since, have stated, both in their news columns and 
editorially, that Senator Timilty did throw his ward for Senator Tinkham? — 
A. I did not know that there had been any editorial comment made upon that, 
but I did hear that one or two papers said that Senator Timilty — I won't say 
" threw " his ward — but that Senator Timilty had supported me. 

Q. And, as a matter of fact, it was common talk throughout political circle? 
in the city that Senator Timilty did support you? — A. I have heard that. 

Q. Quite commonly? — A. I understood — that is, I heard a good many state- 
ments that he had. 

And the impression to be gathered from all the testimony is that 
Mr. Timilty did support him. 

Mr. Magee. What ward is referred to in this testimony as the 
senator's ward? 



CONTESTED-ELECTION CASE HORGAN VS. TINKHAM. 17 

Mr. Prout. Waid 18. 

Mr. Russell. Is there anything" showing" what infinences brought 
Senator Timilty to the siip])ort of the contestee? 

Mr. Protit. Well, we will try to show that as we go along. Before 
leaving it I would like to say that the importance of the point, as far 
as we have discussed it here now. is in the fact, largely, that Senator 
Timilty denied that he did support Tinkham, and we claim that that 
raises a prima facie presumption that the support which was given 
Tinkham. and subsequently denied under oath, was given for some 
ulterior purpose. 

Mr. Ramsever. Of course. Tinkham denies that also. 

Mr. Prout. Denies what '( 

Mr. Ramseyer. That Timilty supported him. 

Mr. Prout. Well, as we have been saying here, he says he did not 
know that he supported him. He says he did not. and. again, he has 
heard it. and it is quite connnon. and the general impression is, while 
he does not want to say he knew Timilty was going to, or, as a matter 
of absolute fact, that he did, still the imi)ression to be gathered from 
all his testimony is that he must admit that Senator Timilty did 
support him. 

Mr. Russell. What is the conclusive proof, if you have any, show- 
ing that Senator Timilty did support the contestee ^ 

Mr. Prout. That is shov.n in several ways. In one way, for in- 
stance, there are three witnesses who testified that Senator Timilty 
approached them on electi<m day and asked them to vote for Tink- 
ham. That is Crinnnins on page 201, Devlin on page 127, and 
Condon on page 24(5. Now. the character of Senator Timilty's ward 
is such and his domination of that ward and the voters in it is such 
that it is almost impossible to get voters to come into court and tes- 
tify against Senator Timilty. We did. however, succeed in getting 
these three men whom we happened to learn were voters who were 
approached by Timilty, and who also had the courage to come in 
and testify as to that fact. 

Mr. Russell. Did Timilty expressly dispute their statement in 
any way? 

Mr. Prout. I think he was asked about one of thein. T do not 
think he was asked about the other two, and the (me he was asked 
about, he denied. 

Mr. Magee. Is it your conclusion there was any luiderstanding 
or working pact between Mr. Tinkham and Senator Timilty based 
only upon presumption which you have already referred to ^ 

Mr. Prout. We have been unable to connect Mr. Tinkham per- 
sonally with Mr. Timilty, but there is certain testimony in evidence 
which connects Mr. Timilty with Mr. Tinkham's agent. 

Mr. Magee. If I recall, Mr. Prout, you mentioned a meeting at 
some club — I think some Democratic political organization — where 
Senator Timilty advocated the election of Mr. Tinkham? 

INIr. Prout. No, sir. 

Mr. Magee. What was there about that? 

Mr. Prout. What I referred to — you mean here this morning? 

Mr. Magee. Yes. I thought you said that there was some meeting 
of some kind Avhere the senator recommended that they support 
Mr. Tinkham. 

4G.S39— 16 2 



18 COjSTTESTED-ELECTION case HOEGAN vs. TIjSTKHAM. 

Mr. Prout. Yes; that was a Democratic rally held in ward 18 at 
the Democratic club, which is Timilty's cliil). 

Mr. Magee. Hoav long was that before election ? 

Mr. Prout. That was the Monda}^ night before election. The 
election was on Tuesday and this Avas on Monday evening. 

Mr. Ramseyer. He did not publicly advocate that. 

Mr. Prout. He publicly advocated Horgan and instructed his 
voters to vote for Horgan, and then immediately before the voters 
left the place and while they were on their way out and the next day 
on election day advocated — that is. instructed them to vote for 
Tinkham. 

Mr. Magee. Was this at a rally on the night before election? 

Mr. Prout. This was at the rally on Monday evening. There is 
also evidence of a meeting of the club on Sunday afternoon before 
the election. 

Mr. Magee. Is there any evidence or assertion that the senator 
stated publicly to the gathering, either on the Sunday or on the 
Monday evening preceding the election, recommending the election 
of Mr. Tinkham ? 

Mr. Prout. I do not think there was any evidence of a public 
speech before any large gathering of people by Senator Timilty 
adA'ocating the election of contestee. 

Mr. Magee. I mean at this particular gathering. How did he do 
it? Do you claim he spoke to them individually or openly and 
collectively ? 

Mr. Prout. Individualh^, on Monday evening at the public meet- 
ing, but I understand there is evidence that at the club meeting, on 
Sunday afternoon, he did instruct the voters to vote for Tinkham. 

Mr. Innes. There is nothing of that sort in the record. 

The Chairman. Does this correctly state your argument : That 
Timilty supported the contestee — and I will say that the evidence 
seems to quite strongly convince me that he did support the con- 
testee — and if he did it was. from a party standpoint, very unfair, 
to say the least, in my judgment. Now, are we both in accord 
in the belief that that in itself was not unlawful under the statutes? 

Mr. Prout. Yes, sir. 

The Chairman. But your contention is, and correctly so. if I do 
not misquote what I believe to be your contention, that while that 
in itself would not show anything unlawful, the fact that when he 
Avas produced on the stand he denied he had done what seems to be 
strongly established by other voters, namely, that he supported the 
contestee, the fact that he denied that is proof there was something 
illegal in his action which must be explained by the contestee. Does 
that state your argument? I am looking for the right in asking these 
questions. 

Mr. Prout. We claim that that establishes the fact that there was 
an agreement between them and that Timilty would not have done 
that unless there had been an agreement. 

The Chairman. That is what I wanted to get at. 

Mr. Prout. And in view of the fact that he denies it under 
oath 

The Chairman (interposing). The fact of the denial under 
oath 



CONTESTED-ELECTION CASE HORGAN VS. TINKHAM. 19 

Mr. Pkout (interposiiiij). Is a susi)i('i()us ciicumstance. 

The Chairinian. And proves Avhat ^ 

Mr. Prout. And proves a conspiracy. There must have been an 
illegal consideration for the conspiracy, else he would not commit 
perjury to explain it, and also the fact that Mr. Timilty on the testi- 
mony of several witnesses, was distributing money at the poles and 
was advocating the election of Tinkham. 

The Chairman. That is proved by other witnesses and is a dis- 
tinct charge? 

Mr. Prout. Yes. 

The Chairman. That comes under the bribery charge? 

Mr. Prout. And we claim that he would not have done that unless 
he had received some consideration for doing it. 

Mr. Magee. I had this ])oint in mind following the suggestions of 
the honorable chairman, and that is Avhether, when the senator made 
that statement at the Sunday meeting or at the Monday night meet- 
ing, it was generally known through the ward that the senator 
favored the election of Mr. Tinkham. 

Mr. Prout. I do not believe it was generally known; that is, that 
the great body of voters knew it until election day. 

Mr. Magee. Or a material body of them? 

Mr. Prout. I would say in that particular ward that they have a 
strong Democratic organization — the Timilty Club — that is, Timilty 
has it, and there is evidence as to the extent of the membership of 
that, but it has slipped mv mind. I think it is in the vicinitv of 500 
or 600. 

Mr. Magee. To what extent would you say — — 

Mr. Prout (interposing). And the men who belonged to that club 
knew of it on Sunday afternoon. 

jNIr. Magee. To what extent would you say that that knowledge 
on the part of the members of this Democratic organization might go 
through the ward and become known generally to the Democratic 
Aoters ? 

Mr. Prout. Of course the club members, in addition to being in- 
structed themselves, were, of course, instructed to pass the word 
along, and also on Tuesday morning each ])recinct captain was sta- 
tioned at the polls and Mr. Timilty covered two precints himself, 
and the vote in those precincts shows the effect of his presence there 
and the fact of his support of Mr. Tinkham. 

Mr. Magee. How many precincts are in that ward? 

Mr. Prout. Six precincts. He covered precincts 5 and G. and in 
precinct 5, where Mr. Timilty spent most of his time on election day, 
the contestee received a vote of 438 per cent in excess of the vote cast 
for the Republican candidate for governor : that is to say, four times 
as many votes, and over nine times as many votes as were cast for 
the Eepublican candidate for the senate. 

Mr. Magee. How was it in the other precincts of the ward? 

Mr. Prout. In precinct 6, which is a neighboring precinct, and 
where Mr. Timilty spent part of his time, the percentage runs not 
so large, but because of the fact of Mr. Timilty 's own personality 
there were from two to two and a half times as many votes cast for 
the contestee as were cast for any other Republican officer, and in 
the other precincts in that ward they show a great increase, and in 



20 contested-electiojSt case hokgan vs. tinkham. 

the other two wards of Mr. Timilty's senatorial district, in which 
he spent a part of the day, and in which he has a sort of following, 
there was also an increase, the percentages being— — 

Mr. Magee (interposing). Give us a general idea, Mr. Prout, what 
you claim to be the general effect. 

Mr. Prout. We claim the general effect in ward 18 was to cost 
the contestant somewhere in the vicinity of 600 votes, and in the 
other two wards of the senatorial district 500 votes, ward 22, and also 
a large number of votes in ward 19. so that a comparison of the votes 
in Timiltj^'s ward and the other two wards of the senatorial district 
with the other wards in the district will show that on account of his 
support and his activity Mr. Horgafi lost a large number of votes ana 
Mr. Tinkham gained them. 

Mr. ]Magee. What would you estimate, if I might ask. the aggre- 
gate number? 

Mr. Prout. We would estimate the aggregate number — I will look 
that up. 

Mr. Russell. You can look up the figures and place them in the 
record later. 

Mr. Prout. Yes: I will do that. 

The Chair3Iax. Before you conclude. Mr. Prout, I want you to 
give quite some attention to the charge of the illegal use of money 
in the election. I want a full explanation both of the charge that 
money was illegally expended, and I also want a very full explana- 
tion of the defense when counsel for the contestee argues that ground 
of the contest. 

Mr. Eamseter. Before he takes that up, let me ask this question r 
Wliat is Mr. Timilty's business? 

Mr. Prout. He is a paving contractor. 

Mr. Eamseter. Xow you stated that he dominates those wards of 
his district. T^liat class of people have you in that district ? Are 
they native Americans or foreigners? 

Mr. Prout. Xo; in ward 18 

Mr. IxxEs (interposing). I think we can agree on that. 

Mr. Prout. I am rather afraid to go on record. 

Mr. IxNES. They are largely what would be called Irish- Ameri- 
can voters in 18 and 19, and German- Americans in 22, and a number 
of negToes in ward 18. I do not use the hyphen because I like it but 
because I think that describes it. 

Mr. TiLLMAX. You say there are a number of negroes in ward 18? 

Mr. IxxES. In ward 18, Mr. Timilty's own ward, where the Ee- 
publican vote is largely negi-o. 

Mr. TiLLMAx. Before you leave that point, is it clearly estab- 
lished that Timilty. on Sunday before the election on Tuseday. 
actually did advise the members of his club, the club he controls to 
vote for Tinkham ? 

Mr. Prout. No : it is not. 

Mr. TiLLMAx. '\A1iere is that evidence? 

Mr. Prout. There is evidence 

Mr. IxxES (interposing). If I may say so, I do not think there 
is any evidence of that sort. 

Mr. TiLLMAX, Of course, that is important as I regard it, and that 
is the reason I ask about it. 



CONTESTED-ELECTION CASK HOROAN VS. TIXKHAM. 21 

Mr. Ramseyer. I just wanted to ask those (juestions to get a gen- 
eral idea of the matter before you take uj) the jioint suggested l)v 
the chairman. 

Mr. Tillman. If you will refer me to the page where that is 
treated I will he oldiged to you. If you can not do it now you ma}' 
pass on to something else and do so later. 

Mr. Prout. That is contained in the testimony of the contestant, 
and also, I believe, in the testimony of one William F. Doyle. I 
will furnish the page later. 

Now, on the question of the use of money, which I have touched 
(»n to a certain extent, that is covered, as I have already stated, 
in the testimony of one Ednunid B. Dolan. i)age 807. who testified 
he was paid $2 ()v the contestee; and Purcell. who 

The Chairman (interposing). What I want to know is whether 
there is any charge here that either party exceeded the amount al- 
lowed by the statute of Massachusetts and l\v the law of Congress 
to be used in electing Congressmen i 

Mr. Prout. Yes: there is an allegation on the part of the con- 
testant that the contestee exceeded the amount allowed by the Massa- 
chusetts corrupt-practices act. 

The Chairman. Xow. let us get at that. AVhat is tlic law of 
Massachusetts? 

Mr. Proit. The law of Massachusetts allows $1. .■)(»() in n primary 
• ontest: not over $1,500 in a pi'imarv contest for Congress, and 
S3.000 in an election contest. 

The C^HAiR^rAN. This, of eoui-se. is i)urely an election contest? 

Mr. Proit. Ves. 

The CnAHiMAN. .Vnd vour c<»ntcntion is that the law allows 
$8,000 ? 

Mr. Proit. \'es. 

The Chaholkn. TIow much do you claim Tinkham silent? 

Mr. Proit. AA'e claim that Mi". Tinkiiam si)ent. on his own achuis- 
sion and testimony. $4.-Jl.">.84. 

Mr. Ramskvkr. Is that for the election or for the piimarv and 
elec^tion ( 

Mr. Proit. That is the election exclusively. 

Mr. Tillman. P'our thou.^ond and what ^ 

Mr. Prout. $4.-.il.5.;U. 

Mr. Tillman. That is. at the primary^ 

Mr. Prout. No: at the election. 

The Chairman. You are leaving the i)iima:\v out of this alto- 
gether ? 

Mr. Prout. Yes. 

Mr. Innes. There was no contest in the primary. 

Mr. Ramsever. Under your State law you are re<|uired to file an 
itemized statement with what officer^ 

Mr. Prout. With the secretary of state. 

Mr. Ramsever. .Vnd does his itemized statement show $4,215.34? 

•Ml'. Proit. X<»: 1 will explain that. That $4,-215.84 is simply and 
solely what Ml-. Tinkliani admits him.^elf to have spent. Now. Mr. 
Tinkham explains that amount by a (i\u)tation of a statement of his 
interpretation of the Mas.sa(husetts act which is in conflict with the 
Federal act. 



22 CONTESTED-ELECTION CASE HOKGAN VS. TINKHAM. 

The Chairman. That is what we want to know. How does Tink- 
ham justify the expenditure of $4,215.34 when the Law says he can 
spend only $3,000? 

Mr. Prout. He says that under the Federal act personal expenses 
are not included in that amount, and he includes as personal expenses 
printing and mailing and postage, and he claims that since the 
Massachusetts act is in violation — or. as he claims, is in Adolation or 
conflict with the Federal law— in spite of the fact that the Massa- 
chusetts act sets forth $3,000 as an absolute limit, under the Federal 
act, he is entitled to spend in excess of that amount for printing, 
mailing, and postage, which he claims are personal expenses. 

Mr. EussELL. But the Federal act provides that where there is a 
State act the limit shall be that fixed by the State, if under the 
amount fixed by the Federal act. 

Mr. Prout. Yes, sir. Therefore we claim that the limit was $3,000 
and that in exceeding that limit it was an unlawful amount. 

The Chairman. Does the State act, Mr. Prout, exempt a candidate 
from these personal expenses, or does it require him to bring personal 
and all other expenses within the $3,000 limit? 

Mr. Prout. That Massachusetts corrupt-practices act was passed in 
1914 as amended 

The Chairman (interposing). What time in 1914? 

Mr. Prout. It went into effect on the 1st of August. 

The Chairman. The 1st of of August, 1914? 

Mr. Prout. 1914. 

The Chairman. Before the election? 

Mr. Innes. August 1 before the election, and many men did their 
printing for this election before the 1st of August. This act took 
effect practically just on the eve of this election, August 1, 1914. 

Mr. Eamseyer. Have you a reference to that act? 

Mr. Prout. The act is printed almost in full in the contestee's brief. 
It is chapter 835 of the acts of 1912 as amended by chapter 783 of 
the acts of 1914. 

Mr. Magee. What section of 1912 ? 

Mr. Prout. Chapter 835 of the acts of 1912 and chapter 783 of the 
acts of 1914. 

Now, Mr. Tinkham filed his report with the secretary of state and 
made some suggestion, I believe that there were other expenses 
which he 

Mr. Innes (interposing). Why not read what he said, Mr. Prout? 

Mr. Prout. I will if I can find it here. Have you got it ? 

Mr. Magee, What was the maximum allowed under the prior act ? 

Mr. Eogers. That is at page 84 of the contestee's brief, Mr. Prout. 

Mr. Prout. On that point Mr. Herbert H. Boynton, who was the 
assistant secretary of state and the man in charge of that particular 
work in the secretary of state's office, testified, and Mr. Tinkham in 
filing his report said : 

I make no return of printing, postage, stationery, typewriting, etc., because 
section 343, chapter 835, acts of 1912, as amended by section 2, chapter 783, acts 
of 1914, says that " candidates for nomination or election to the Senate or 
House of Representatives of the United States shall be subject to the laws of the 
United States in so far as this act may conflict with such laws." 



CONTESTED-ELECTION CASE HOEGAN VS. TINKHAM. 23 

That is, he claims he comes under the Federal act and is not bound 
by the Massachusetts act, although the Federal act states where there 
is a conflict 

Mr. EoGERs (interposing). Each law says that Avherever there is 
a conflict the other one shall prevail, does it not ? 

Mr. Prout. I believe so. 

Mr. Eamseyer. Does the Massachusetts law say that ? 

Mr. Rogers. Yes. 

Mr. Prout. And Mr. Boynton, who was in the secretary of state's 
office, testified : 

I called the attention of Mr. Tinkluun to the possibility of donbt as to whether 
his constrnotion of the Massachusetts law was correct, stating that lUKloiibtedly 
we would he obliged to submit it to the attorney general for his decision, on the 
ground that the State law was complete, and it required everything to be stated, 
and that part of the United States law in effect stated that it shall be subject 
to t]K> laws of tlie United States so far as they were applicable and in conflict. 
My understanding of the law was that he should be subject to any other require- 
ments in addition to the State law; that the State law was complete. 

Mr. Innes. Mr. Boynton's contention was that there should be a 
return made to the State. He did not say the State law should gov- 
ern, but that there should be a return made. 

The Chairman'. That these personal expenses should be returned? 

Mr. IxNES. His contention was that there should be a return made, 
but they did not come within the limits fixed by the State law, and 
that was the only contention raised by Mr. Boynton. 

Mr. Prout. Mr. Boynton stated in his testimony that the matter 
was referred to the Attorney General as irregular. The campaign 
publicity act. House Rules. 2958, paragraph 940a. at page 407. says: 

This !ict shall not l)e coustruwl to annul or vitiate the laws of any State not 
directly in conflict herewith, relating to the nomination or election of candi- 
dates for the ortices herein named, or to exempt any such candidate from com- 
plying with such State hiW'^. 

Mr. Maoee. As I understand it, if I got the correct impression in 
reading the Massachusetts corrupt practices act, that yielded to the 
Federal law in express terms, did it not? Just what was that State 
act? 

Mr. Prout. The State act says: 

Candidates for nomination or election to the Senate or House of Represent- 
atives of tlie United States shall be subject to the laws of the United States in 
so far as this act may conflict with such laws. 

Now, this act did not conflict with those laws, because the Federal 
law stated expressly that the State law should govern, and that that 
act was not intended to vitiate or annul the State act. The State act 
made an absolute limit of $3,000 and Mr. Tinkham expended $1,200, 
on his own admission, in excess of that amount. 

Mr. Magee. If it was not the intention of the Massachusetts Legis- 
lature to yield to the Federal act, why did they incorporate such 
language in enacting that law? 

Mr. Prout. The idea of the State act as expressed by Mr. Boynton, 
who was in the office of the secretary of state and in charge of election 
affairs, was that the State law was complete — 

and it required everything to be stated, and that part of the Uniie<l States law 
in eifect stated that it shall be t^ubject to the laws of the United States so far as 
they were applicable and in conflict. 



24 COISTTESTED-ELECTION CASE HOKGAN VS. TINKHAM. 

The Chairman. Do both of you gentlemen, Mr. Innes and Mr. 
ProLit, agree that the Massachusetts hiw inchides personal expenses 
and mailing? 

Mr. Innes. It does, unless there is an exemption in the case of 
Congressmen and Senatore. 

The Chairman. Then it is agreed that in case of all officers, out- 
side of Congressmen and Senators, it does include personal expenses? 

Mr. Innes. It does include them. 

The Chairman. But your contention is that in the case of Con- 
gressmen they are exempted by that reference to the act of Congress 
and by what you say is permission for a candidate to shape his ex- 
penses according to the congressional rule? 

Mr. Innes. Exactly; and the second point which I was going to 
make is that our statute expressly provides that good faith shall be 
an answer to all of this, and we have shown in the record whom we 
consulted with and whom we got advice from and that we acted un- 
der that advice throughout. 

Mr. Prout. The contention of the contestant is that this amount 
was expended, and if he expended any other amounts before the 
1st of August, this morning is the first time I have heard it; did he? 

Mr. Innes. No; he kept his accoimt. and you have it, checks and 
everything. 

Mv. Proltt. And we claim he is bound by the Massachusetts act, 
and the spirit and the letter of the act is that $3,000 shall be the limit, 
and that no greater amount shall be allowed. 

The Chairman. Thei'e is not much doubt in my mind that, this 
being a bitter contest, both parties necessarily spent at least up to 
the limit of what they were allowed to spend. Now, I want to know 
if either party exceeded that? 

Mr. Innes. Mr. Horgan's own returns exceed that. I am not rais- 
ing any question about his good faith, but I think that is the fact. 

Mr. Prout. We, of course, claim that the contestee spent $4,200 
instead of $3,000, and the contestee alleges that the contestant spent 
in excess of the amount allowed; but the difficulty is that the con- 
testant's return of election expenses on page 36 of his brief shows 
an expenditure of $1,771, including the payment of $600 to his cam- 
paign committee. That is the total expense of the contestant, shown 
on ]5age 36 of the contestant's first brief. 

The Chairman. I have the brief here, and it is not on page 36. 

Mr. RocxERS. Perhaps it is on the preceding page or the following 
page. 

The Chairman. Yes; it is on page 38. Why do you put in here 
the primary expenses? 

Mr. Proit. They should not have been. So far as the election 
expenses are concerned, these items of expense were duplicated in 
some respects. He put in his statement $600 paid to the committee, 
and then the committee accounted here for the same $600. There- 
fore, deducting that amount and also deducting the $5,5, as explained 
in there, the amount is reduced to $75. In other words, if you will 
deduct $55 from the $130 returned to Congress by contestant, there 
will be left $75, and that brings the amount down to $2,943143. That 
represents every cent that has been spent by both the contestant and 
by his committee. 



CONTESTED-ELECTION CASE HORGAN VS. TINKIIAM. 25 

Mr. Magee. Suppcise he contributed so nmcli to the committee, do 
you contend that if the committee accounted for it under the Massa- 
chusetts act he would be relieved if 

Mr. Prot't. No. sir ; he is obliged to account for that. 

The Chairman. I understand you to say that, taking into consid- 
eration everything- spent by his committee and everything sjient by 
him, the amount comes within $3,000. 

Mr. Prout. Yes, sir. 

The Chairman. That is your contention? 

Mr. Prout. Yes, sir; it amounts to $2,l)-13.-lr?>. That is not denied. 

Mr. Innes. We have added to the figures in our brief 

Mr. Magee (interposing). AVas the $()00 deducted? 

Mr. Innes. We say 

The Chairman (interposing). Do you contend that more than 
that was paid ? 

Mr. Innes. Yes, sir; based on his own figures. I am giving him 
credit for the money paid to the committee. 

Mr. Russell. You claim that the contestee expended more than 
the amount that he admits? 

Mr. Prout. In the statement that the contestee has made on page 
96 of his brief, he bulks the primary expenses in with the election 
expenses, and he shows an expenditure of $4.5-1:4.03 instead of $4,500. 
as is allowed by law for primary and election expenses. 

Mr. EussELL, Do you admit that that is the amount that was ex- 
pended, or do you claim that there was even more than that sum? 

Mr. Prout. This is their statement of the contestant's expenses. 

Mr. Russell. How much is that? 

Mr. Pkoi^t. That is $4,544.03. The contestee claims that there was 
an excessive amount expended of $9.75. 

The Chairman. Are you going to show that Mi-. Tinkliam spent 
more than that $4,200? Are you going to show that he did really 
spend more than that, and that he spent more than $3,000 for the 
things that he was not allowed to spend over $3,000 for? 

Mr. Prout. The amounts in excess of that are a number of small 
minor amounts. 

The Chairman. For things not included in personal expenses? 

Mr. Proit. The only one in addition to those expenditures is the 
amount expended for what we allege is bribery, which does not 
amount to a great deal, possibly not more than $150. 

Mr. Magee. What puzzles me is the question of the amounts that 
they may lawfully expend under the Massachusetts statutes. Now, 
I understand you to contend that the maximum is $3,000 for election 
purposes? 

Mr. Prout. Yes. sir. 

Mr. Magee. And the maximum allowed under the law for ])rimary 
purposes is $1,500? 

Mr. Prout. Yes, sir. 

Mr. Magee. They are separate and divided? 

Mr. Prout. Yes, .sir; separate and divided. Noav, the figures of 
the contestant including everything, printing, postage, mailing, and 
all personal expenses of every kind and nature, show $2,943. I do 
not quite understand the excess of $44 claimed by the contestee, and 
I do not quite understand the bulking together of the primary ex- 



26 CONTESTED-ELECT! 01^ CASE HOEGAN VS. TINKHAM. 

penses and the election expenses of the contestant. The figures given 
in the contestant's brief are figures which were made under oath and 
which were not questioned. 

Mr. Magee. Your contention is that Mr. Tinkham, in both the 
primary and election contests, expended some $44 in excess of the 
maximum amount allowed by law? 

Mr. Prout. No. sir ; we are talking simply of the election ex- 
penses, and we claim that he expended $1,200 more for the election 
than the law allows — that is, that he expended $4,200 instead of 
$3,000. 

Mr. Magee. What is your contention as to the amount expended 
by him for primary expenses? 

Mr. Prout. I do not know that they expended anything on ac- 
count of the primary. He had no contest in the primary. 

Mr. Magee. The disbursements of the contestee that are material 
here relate entirely to election expenses? 

Mr. Prout. The figures of the contestee relate altogether to elec- 
tion expenses. The amount is $4,200. 

Mr. Ramseyer. When was the primary held? 

Mr. Prout. On the 23d of September. I hope the members of the 
committee are not confusing the contestant and contestee in these elec- 
tion returns. The contestant claims that the contestee spent $1,200 
more on his election than the law allows, and the contestee tries to 
explain that on the ground of a difference in the law 

The Chairman (interposing) . That he is exempted by the Massa- 
chusetts statute? 

Mr. Prout. Yes, sir. There is no distinct argument raised by the 
contestee on the contestant's expenses. 

The Chairman. Is the contestee going to argue that the contestant 
spent more than $3,000? 

Mr. Innes. It is a very small sum. We are simply using it to 
indicate how possible it is for anybody, no matter in what good faith 
he may be acting, to go beyond the limit in such matters as printing, 
for instance. 

Mr. Rogers. You say he may go over the limit, even when acting 
in good faith ? Does the statute expressly provide for that ? 

Mr. Innes. Yes, sir. 

Mr. Prout. The contestee, in his figures on the primary and elec- 
tion returns of the contestant, deducts the $1,200 which was dupli- 
cated, but he does not deduct the $75, which was also duplicated, as 
explained by the contestant on page 39 of the brief, wherein he says: 

October 20, 1914, return to Congress by contestant $130, from which should be 
deducted items 17 and 10, amounting to $55, which were duplicated. 

In other words, taking the figures of the contestee, after making 
that deduction of $55 on account of duplication, the amount would 
be brought under $3,000, because he claims an excess of only $44. 

Now, in order to get through, I will return briefly to the matter 
of the conspiracy with Timilty, as shown by the facts and figures 
that have been presented, by the testimony of the several witnesses I 
have referred to, and by general rumor throughout the district that 
it was a matter of common knowledge. It is also a suspicious cir- 
cumstance that the contestee visited Timilty at his clubroom shortly 
after the election. He claims in his testimony that, although he went 



CONTESTED-ELECTION CASE HOEGAN VS. T[NKHAM. 27 

through the district every night and was well acquainted with it. he 
did not know where he was going when he went to this place, but 
that he thought he was going to the " Nuff-ced " Club. However, 
Mr. Tiniilty was there and introduced him and he talked. That 
visit shortly after the election Avas commented upon by the news- 
papers, and was a highly suspicious circumstance. One other thing 
which ties them up and which is given a great deal of attention in 
the evidence and in the briefs is the one-way circular. 

The Chair^iax. It is now 12 o'clock, and we have no authority to 
sit during sessions of the House. We Avill therefore adjourn until 
10 o'clock to-morrow morning. 

(Thereupon, at 12 o'clock noon, the committee adjourned until 
Thursdav. Mav 4, 1916, at 10 o'clock a. m.) 



com^iittee on elections xo. 2, 

House of Representatives, 

Thursday, May 4, 1010. 
The committee met at 10 a. m.. Hon. James A. Hamill (chairman) 
presiding. 

The Chair:man. We will continue hearing the arguments in the 
case of Horgnn r. Tinkliam. Mr-. Prout, you may ])roceed. 

STATEMENT OF WILLIAM C. PKOUT, ESQ., COUNSEL FOR CON- 
TESTANT— Continued. 

Mr. Prout. Mr. Chairman, I think when I concluded yesterday I 
was just touching on the conspiracy between Mr. Timilty and the 
contestee, and had covered certain phases or certain circumstances 
tendiug to show that there was a conspiracy. I would like to again 
call the attention of the committee to the fact that from the very 
nature of a conspiracy it is impossible to show or to produce any 
direct evidence proving the fact of a conspiracy, or any evidence 
showing inevitably the existence of a conspiracy. But from what we 
know of human nature, and from what we know from experience and 
from observation, of course, we know that the greatest desire on the 
part of anyone engaged in a conspiracy is to keep those matters 
secret, and owing to the very nature of the conditions surroiuiding 
a conspiracy it is impossible to get direct evidence to prove it. 

In this case we have shown from the evidence, from Mr. Timilty 's 
own words, that he did support Mr. Tinkliam. We have shown from 
the evidence of three witnesses that he did support Mr. Tinkham, and 
we have shown by reference to the common reports throughout the 
district that he did support Mr. Tinkham, and we have shown from 
]Mr. Tinkham's own testimony that Timilty did support him. 

Mr. Magee. Suppose Mr. Timilty did support Mr. Tinkham; is 
that wrong, in itself? 

Mr. Prout. That, I think, I touched on yesterday. I said yester- 
day there is nothing illegal in such support, in itself, or there is 
nothing wrong, even if Mr. Timilty was acting in a representative 
capacity as an agent or representative of Mr. Tinkham, however 
reprehensible it may have been in itself, it is not illegal, but taken in 



28 CONTESTED-ELECTION" CASE HOEGAN VS. TINKHAM. 

conjunction with Mr. Timilty's denial of it, under oath, and the con- 
testee's denial of it, and all the surrounding facts and circum- 
stances, tending to show, and showing, that Mr. Timilty's henchmen 
did everything in their jDower to conceal the situation and to explain 
it away — I think those things should be taken into consideration by 
the committee. 

The Chairman. Here is your argument, as I understand it. I 
want to get the correct understanding of your argument, so that the 
members of the committee may have it clearly before them when 
they came to consider it. 

You say that Mr. Timilty, while pretending to be with Mr. Hor- 
gan, at the last moment turned over himself and swung his friends 
over to the support of Mr. Tinkham — and I say that, politically, was 
an unfair act — but I do not see where it was illegal, and I believe 
you agree with me in that. 

^ But your contention is that that conspiracy, as you call it, coupled 
with the fact that he denied it on the stand, irresistibly forces us to 
conclude that there was an illegal conspiracy. Is that your argu- 
ment ? 

Mr. Pkout. That, together with the e\ddence that Timilty's 
brother-in-law, one Craven 

The Chairman (interposing) . That all goes to the point of shoAV- 
ing that Timilty did actually support Mr. Tinkham ? 

Mr. Prout. And it also shows that they made a great many en- 
deavors to conceal that support and to coerce their witnesses into 
denying that support, and to deny the various connections which we 
showed existed between Timilty and Tinkham, and it all tends to 
show that there was something there they desired to hide and to keep 
under cover. 

The Chairman. So that your argument is that the support of 
Timilty by Tinkham, in itself, is not unlawful, but the fact that he 
denied it under oath proves that there was something unlawful in 
this conspiracy which, you claim, prevented Mr. Horgan from getting 
the election. 

Mr. Prout. That denial, under oath, is one element which tends 
to show that, and that taken in conjunction with all the other things, 
the fact of Mr. Caven's denial 

The Chairman (interposing). That all goes to the point of prov- 
ing that when Timilty said he did not support Tinkham he was 
stating what was not true. As a mater of fact, he did. 

Mr. Prout. It shows the lengths to which he would go to conceal 
the conspiracy, and therefore I say if he would do those things to 
conceal that support there was something illegal and unlawful under- 
neath it all which he went to these lengths to conceal. 

The Chairman. Suppose the committee comes to this point. Sup- 
pose we come to the conclusion that although. Mr. Timilty all along 
lured this man on and led him to believe that he was supporting him, 
which, in a party sense, betrayed him, to say the least — I am strictly 
inclined to take that view of it — is there anything illegal in that ? 

Mr. Prout. No, sir. 

The Chairman. Now, I really want to get your argument, to 
find out, for the benefit of the members of the committee, just what 
your argument is. 



CONTESTED-ELECTION CASE HOEGAN VS. TINKHAM. 29 

Your contention is that the fact that when put on the stand he 
did not admit that, but. on the contrary, took pains to deny it, and to 
conceal it, is sufficient proof to justify this committee in conchiding 
that he had done something illegal, which prevented Mr. Horgan 
from being elected. Is that your argument and your ccmtention? 

Mr. Prout. That is, as far as you go. 

The Chairman. I am not passing any opinion on the matter. I 
merely want to know just what your argument is. 

Mr. Prout. Yes ; and added to that fact Avhich you mentioned, his 
perjury in connection with that point, and these various other points, 
some of which I have touched on and some of which I have not 
touched on, among which is a meeting between Mr. Timilty and Mr. 
Innes, who was interested in Mr. Tinkham's campaign, which meet- 
ing was held at a certain hotel in Boston. 

Mr. Ramseyer. That is denied, is it not? 

Mr. Magee. You have a secret ballot in Massachusetts, have you 
not ? 

Mr. Prout. Yes. 

Mr. Magee. How could anyone be made to divulge mi anv court.. 
or anywhere else, how he may have voted? 

Mr. Prout. He can not be made to divulge that. 

Mr. Magee. How can anyone say but that in this case somebody 
may have voted for Mr. Horgan? 

Mr. Prout. In the first place, I wanted to satisfy the committee 
briefly as to just what Mr. Timilty's strength was in this district, 
how far he did dominate it, and then I intended to call your attention 
to the law governing this question in regard to the exact manner in 
which funds should be dispensed. 

Mr. Eamseyer. As I understand you, although you nuiy not have 
asserted it in so many words — as I understand it, your contention is 
that the senator did not testify truly. 

Mr. Prout. Yes, sir. 

Mr. Ramseyer. And that you draw that conclusion from the pre- 
sumption arising from the facts and circumstances surrounding the 
case. What I mean to say is, how can one say, unless he has pretty 
good proof, that that is evidence as to how the senator voted ? Have 
you not got to take his statement, unless you can rebut it, so that 
there will be something more than a presumpti( ^n existing as to how 
he did actually vote ? 

Mr. Prout. Of course, while it is impossible to ever force a man to 
divulge how he voted, it is his privilege to admit how he voted. In 
this case, Mr. Timilty refused to state how he voted. 

Mr. Ramseyer. Of course, it is true in a large number of cases that 
very often a large nmnber of Democrats vote for some Republican 
on a ticket, and, vice versa, it is also true that a large number of 
Republicans vote for some Democrat on a ticket. 

Mr. Prout. Yes. 

Mr. Russell. Is there anything in the evidence which tends ta 
show what his incentive was for betraying his party nominee? Was 
there any personal bad feeling between them ? 

Mr. Prout. No; Mr. Timilty said he was as friendly to the con- 
testant as he always had been. He said that he was friendly to him 
on election dav. and there is no evidence of any reason for the ex- 



30 CONTESTED-ELECTION" CASE HORGAN VS. TINKHAM. 

istence of any enmity between them. On the other hand, the con- 
testee testified that he did not know Mr. Timilty, except to speak to 
him, and he testified that he never had had any extended conversa- 
tion with him on any subject. 

Mr. Tillman. What is your idea of the motive that prompted 
Mr. Timilty to betray the contestant, if he did betray him? If you 
find a motive, you take a long step in the direction of finding what 
was actually done. If Mr. Timilty did that, he must have had a 
motive. What was the motive? 

Mr. Prout. The motive we allege, supported by no direct evidence, 
but supported by secondary evidence, is that there was a money con- 
sideration. 

Mr. Tillman. I suspected that that was your idea. I would like to 
hear you on these points: I would like to hear you on the point you 
just mentioned, and also if money or whisky was illegally used by the 
contestee or his friends. I would like to hear you on that. I can 
understand why, if there was a free ballot, there avouIcI be some 
justification in seating the contestant. I would like to hear you per- 
sonally on those three points. 

Mr. Ramseyer. Suppose Mr. Timilty had gotten on the stand and 
admitted and said that he voted for Mr. Tinkham, and that he told 
his friends to vote for Mr. Tinkham. How would that affect your 
case ? 

Mr. Tillman. That would not in itself be any justification for 
seating the contestant. 

Mr. Ramseyer. Would that strengthen or weaken your case, if he 
had admitted that on the stand ? 

Mr. Prout. If he had admitted on the stand that he had supported 
the contestee and there were no rumors of alleged corruption, that 
would, of course, have weakened the contestant's case. 

Mr. Tillman. I wish you would answer the question I asked you, 
and also address j^ourself to the other point of unfair methods with 
cards and posters, and otherwise. I think that is the crux of the case. 

Mr. Prout. There are one or two other things I would like to refer 
to first, if there is no objection. 

Mr. Tillman. Certainly. I simply wanted to be sure that you 
would develop the points I referred to before you get through. 

Mr. Prout. I would like to refer to this matter of the alleged con- 
spiracy, and also to refer to this circular and save your time, because, 
while it may be said that that is not very important, I would like to 
point out where it is important. 

Mr. Ramseyer. Have you that exhibit here ? 

Mr. Prout. Yes; that is in the record in several places, and the 
original exhibits have also been filed with the Clerk of the House. 
You will find a copy of that on page 431 of the record. That is 
what is referred to as the " One way " circular. The " One way " 
circular was a circular, of which you have a copy, which was sent 
out through the district on the Friday and Saturday before election 
day, which was on the following Tuesday. The originals of that 
circular have been filed with the Clerk of the House, and I presume 
that they are now in the possession of the Clerk of the House of Repre- 
sentatives. That circular was signed by seven Democratic voters in 
that district. 



COISTTESTED-ELECTIOX CASE TIOEGAN VS. TTNKHAM. 31 

The CiiAiRjNrAx. What page of the record is that on? 

Mr. Prout. It is on pages 431 and 132 of the record, 

The Chairman. What is the number of the exhibit? 

Mr. Prout. It is contestant's Exhibit Xo. 11 to the testimony of 
James TI. Barry. 

That circidar was signed by seven Democratic voters in that dis- 
trict. And it appears in evidence that at least five of them were 
enrolled Democrats and members of Timilty's club. Under the laws 
of Massachusetts it required one signature in order to make that a 
legal circular. 

The Chairman. Why was it called the " One way" circular? 

Mr. Prout. It was called the " One way " circular because it was 
headed " The one-way game exposed," and we have referred to it 
as the " One way " circular for the sake of brevity. 

There wei-e several reasons why that circular was introduced in 
evidence by the contestant. In the first place, when the cii-cu.lar was 
originally referred to, several of the witnesses summoned by the 
contestant, who were friendly to the contestee, denied ever having 
signed that circular or having known there Avas such a circular; and 
after that it was shown by several witnesses that a large number of 
copies of this circular were thrown from the l)uilding in which the 
contestee had his office and from a height which would indicate 
that they came from the window of the contestee's office on to 
a Democratic rally which was being held on the street below, at 
Avhich the Democratic governor of the State was speaking, and in 
several other ways the connection between the contestee and that 
circular was established. The circular became a very important 
exhibit for the reason that we find that the signers were members 
of the Timilty Club, and our c(mtention is that the signatures were 
obtained by Mr. Timilty, again establishing the connection between 
him and Mr. Tinkham as well as the fact that Mr. Timilty denied 
any knowledge of the circulars and denied cooperating in any way 
in getting it out. and also denied that any consideration of anv 
kind Avas paid, while the evidence shows — the evidence of contestee's 
witnesses as well as contestant's witnesses — that Mr. Timilty did 
know about the circulars, and that shortly after it was sent out broad- 
cast Mr. Nicholls, a friend of contestee, finally admitted responsi- 
bility for these circulars and testified that when he learned there 
was some commotion in the district in regard to the signatures tele- 
phoned to Mr. Timilty. and Mr. Timilty brought the signers to 
Mr. Nicholls's office, and there they executed affidavits, copies of 
which are in evidence, to the effect that they did sign that circular. 

It also appears in evidence that seven of the signatures weve ol)- 
tained in Mr. Timilty's clubroom by Mr. Timilty's brother-in-laAv. 
Mr. Craven, and Craven, in testifying as to who made him obtain 
the signatures, or how he happened to get them, denied that he did 
it at the behest of Mr. Tinkham or any of his agents, and said he 
did it for an old-time friend of his, and that he was so friendly t(^ 
him that he would do things for him in favor of Tinkham rather 
than do what Timilty wanted him to do, although he Avas ahvays 
known as a heeler of Timilty's. This man, AAdiose name Avas Broad- 
Avin or Broadbent — it is given both ways in the evidence — died sev- 
eral davs before Craven testified, and I desire to call the com- 



32 CONTESTED-ELECTION CASE HOEGAN VS. TINKHAM. 

mittee's attention especially to the fact that this man Craven, in 
spite of his protestations of his long acquaintance with Broadwin or 
Broaclbent, in view of the fact that the members of that man's family 
could not see any good reasons why he should do this for him, that 
this man Broadbent or Broadwin was selected because it Avas known 
to Craven that Broadwin was dead, and therefore he put this on 
Broadwin, who died on January 26, 1915. They fastened this cir- 
cular, this " One-way " circular, on to Broadwin because he, being 
dead, could not be summoned, and he would present an unpassable 
wall beyond which they could not go and could not make any in- 
quiries in regard to the circular which he sent ovit and in regard to 
the consideration which was paid for it. 

The production of this dead man, Broadwin, we think, in addi- 
tion to that fact, is a suspicious circumstance, because when people 
who are confronted with allegations of this kind go to the extreme 
length of talking about a dead man and holding him responsible 
for such things, we say that that in itself is an extremely suspicious 
circumstance. - 

In addition to that is the evidence that Timilty represented that 
he knew nothing about it, when, as a matter of fact, he took the 
men to Mr. NichoU's office to get them to make affidavits, showing 
that he was deliberately lying there, and that is substantiated by 
the testimony of Mr. Nicholls as well as the men who made the 
affidavit that they were taken to Nicholls's office by Timilty. 

There is also the evidence that Mr. Nicholls did not know Mr. 
Broadbent or Broadwin and that none of the men interested in 
Tinkham's campaign knew him, thereby showing that Broadbent 
was not interested in Tinkham's campaign, but was introduced into 
the case for the purpose of stopping any inquiry along that line. 
' The Chairman. Did you ever find out whether the men who 
signed the circular got any money ? 

Mr. Prout. There is evidence to the effect that this man Craven 
was paid $50 for obtaining the signatures. There is evidence of 
rumor that Mr. Craven got $50 for getting the signatures. There 
are also other things in connection with the " One-way " circular. 

There is the testimony of Robert F. Fanning, on page 1827 ^"^'ho 
made affidavit that his signature was put on without his knowledge 
or consent, but who later made affidavit that he did sign it for Mr. 
Nicholls. That was a second affidavit, and when he went on the 
stand he endeavored to disown his first affidavit, and to deny that 
he ever made it. 

There was also the testimony of one Gormley that he did not sign 
it, and that Craven had told him he signed his name to it, and that 
Gormley had heard stories through the district that there was a 
frame up going to be executed, and that witnesses were going to be 
produced who would testify, who were going to testify that he did 
sign the circular, and that they saw him' sign it. 

Mr. Ramseyer. Were any of those matters ever taken to the 
grand jury? 

Mr. Prout. No. 

Mr. Ramseyer. If Craven got $50 he ought to be in jail, ought 
he not? 



CONTESTED-ELECTION CASE HORGAN VS. TINKHAM. 33 

Mr. Pkout. Craven has a criminal record which is in evidence, 
showing. I think, about iJO convictions, but he, being- a brother-in-hxw 
of Senator Tiniilty. and Senator Timilty being a strong man in 
Suffolk County, he had very little difficulty in regard to that. 

The Chairman. So that you did not put him in jail because it 
A\'<uuld not have any corrective effect on him, after all these re- 
])eated failures? 

Mr. Prout. Thei'e is another thing I would like to mention in 
connection with the alleged conspiracy, which is important, first, 
because it injured the contestant and, secondly, as establishing the 
conspiracy between Mr. Timilty and Mr. Tinkham, and that is the 
friends of the contestant had one circular which was to be sent 
broadcast throughout the district to every enrolled Democrat and 
to every unenrolled voter, making about 21,000 voters in the district 
to which that circular was to be sent. 

For the purpose of having it sent to the Democratic unenrolled 
voters in the district, contestant, sometime prior to the election, and 
before he knew of the action of Mr. Timilty, engaged Mr. Timilty \s 
secretary, John J. Sullivan, who had a corps of workers for the 
mailing of political literature: he engaged Sullivan to send out his 
circulars, and it appears in evidence that on the Friday or Saturday 
before election day. after the man who was hired to fold the cir- 
culars had folded 15.000 and delivered them, Sullivan told him to 
fold no more, with the result that between 5,000 and 7.000 of the 
circulars Avere never sent out to the Democratic and unenrolled voters 
of the district, and in vieAV of the fact that it was the only circular 
l)eing sent out and gave the contestant's record in great detail, 
and also contained some comments on the contestee's record, together 
with indorsements in favor of the contestant, we feel that the fact 
that it did not go to T.OOO voters of the district, deprived the 7,000 
voters of the knowledge of the relative merits of the two candi- 
dates, to which knowledge they were entitled, and Avhich it was 
necessary for them to know in order to arrive at an intelligent de- 
cision as to how to vote. It deprived the contestant of a large 
number of votes which he otherwise would have had. It showed 
the length to which Mr. Timilty and his employees went in depriv- 
ing the contestant of his rights as a candidate, and also tends to 
shoAv that in order to do those things, those desperate things, there 
was something buried in the woodpile other than a mere desire to 
fool the i)eo))ie by a smart political trick. 

Tliere is also evidence (by Lally and Tobin). which, of course, is 
denied, but which I have already referred to, as to a meeting which 
Mr. Timilty and Mr. Innes had at a hotel known as the New 
Tremont House, in Boston, which is testified to on pages 290 and 
291. and also on page 311 of the record. 

Mr. Timilty denied that he had been at that hotel for a long period 
of time, but we submit, however, that it is very natural for Mr. 
Timilty to deny that, and in view of the subsequent facts we think 
it is very probable that he did meet somebody there, and that they 
then and there arranged it for the consideration for this scheme. 

There is also evidence, which is also denied, that Mr. Timilty and 
Mr. Tinkham met at Mr. Innes's office. You will find that testimony 
on page 352 of the record. 



34 COlSTTESTED-ELECTIOIsr CASE HOEGAN VS. TINKHAM. 

There is also evidence at some other pkice to the effect tliat these 
men met at Mr. Innes's office a day or two after election day and 
were overheard arranging for a celebration. 

As far as the fact of having Timilty's support is of importance 
I would direct the attention of the members of the committee to the 
evidence contained on pages 5, 6, and 7 of the contestant's original 
brief — that is, the brown-covered brief — from the testimony on pages 
5, 6, and 7 of that brief it is clear that Mr, Timilty has a very strong 
hold on the voters in that district, as shown by the testimony of John 
A. Copp, which appears on images 345 and 346 of the record. That 
testimony is as follows: 

Q. Well, would you state whether or not Mr. Timilty has any political 
strength outside of ward 18? — A. I don't think he has much strength. Well, 
he has about 700 friends in 22. That is a fact. He has 900 votes in 19, and 
if he stayed in bed or had diphtheria or was dead they would vote for him. 
Seven hundred in 22, 900 in 19, and 1,000 in 18 is 2,600 votes, and you can't 
beat him at the primaries. You are only wasting your time. 

Q. Do you think the 700 voters in 22 are as loyal to him as the 1,000 in 18 
are? — A. Sure; because he has delivered the goods for them and helped them. 

That view is not only the view which is borne out by the other 
witnesses who testified on that point, but is also the common opinion 
of people conversant with political affairs in Boston, and who are 
familiar with Mr. Timilty's strength. 

I will now dwell briefly on the matters which Mr. Tillman wanted 
me to discuss. As I remembered it, you referred to the matter of the 
use of liquor—- — 

Mr. Tillman (interposing). And money. 

Mr. Prout. And money. As far as the use of liquor was con- 
cerned, evidence of the extensive use of liquor in behalf of the con- 
testee is contained in the record. Some evidence has already been 
referred to in regard to the giving of a dozen vials of whisky to one 
Keyes, who had been in the employ of contestee, and there is also 
further evidence in regard to that subject on pages 264, 290, 296, 338, 
356, 358, and 363. That shows a widespread distribution of liquor 
by owners of saloons, who went frequently to contestee 

Mr. Tillman. Is that all in your brief ? 

Mr. Prout. Yes. 

Mr. Magee. Under the election law in Massachusetts, is liquor al- 
lowed to be sold on election day ? 

Mr. Prout. Yes ; liquor is sold on election day in Massachusetts, 
of course, in many unlicensed places, and also in liquor places having 
a hotel license, which requires the expenditure of 10 or 15 cents for 
one hard-boiled egg. 

Mr. Magee. No places are closed under the law, in Massachusetts, 
on election day? 

Mr. Prout. On election day the ordinary barrooms are closed, but 
the cafes and hotels are allowed to remain open. 

Mr. Innes. You mean the hotels. 

Mr. Prout. The places where they sell food. 

Mr. Innes. Where a man goes in and sits down and orders some 
food. He goes in and sits down and gives an order to a waiter for 
something. 

Mr. Ramseyer. What is your kitchen bar? I see that is referred 
to in the brief. Is that a blind tiger ? 



CONTESTED-ELECTION CASE HORGAN VS. TINKHAM. 35 

Mr. Prout. Those unlicensed places which abound in this district. 

The Chairman. About how many of those places would be opened 
in that district or in the territory adjoining- the district; that is, 
places open under this license, which, as I understand it, corresponds 
to the Raines law license in New York, where you buy a sandwich 
and get a drink. 

Mr. Innes. So far as that is concerned, Mr. Chairman, there was 
no evidence that there were any kitchen barrooms, and I do not know 
of any. I never heard of any kitchen bars in our city. 

The Chairman. What do you mean by kitchen barrooms? 

Mr. Prout. That is what Mr. Ramseyer referred to. and is a blind 
tiger. 

The Chairman. They have no licenses at all? 

Mr. Prout. Yes; that is true. As far as licensed hotels in and 
around that particular district are concerned, I should say there are 
8 or 10 of them at least. 

Mr. Ramseyer. Hotels? 

Mr. Prout. Yes. That includes the Hotel Langham. Potters 
Hotel, the Highland Hotel, and the New Tremont House. 

Mr. Innes. There might be 10 in the entire district. I think that 
is a fair statement. 

Mr. Tillman. The Massachusetts law prevents the use of money 
or anything of value to influence the voters? 

Mr. Prout. Yes. 

Mr. Magee. It is true, is it not, that at these hotels no person could 
get a drink unless he purchased some food with it? 

Mr. Prout. Yes ; that is true ; but that is evaded. 

Mr. Magee. That is upon the theory that he should buy a meal. 

Mr. Prout. Yes; but the meal usually consists of a hard-boiled 
egg, which is used over and over again. 

Mr. Innes. They have to pay for it. 

Mr. Prout. They pay for it, but they never eat it. 

In addition to that use of liquor, there is also the use of liquor 
which I spoke of yesterday. Craven spent large sums of money 
in Potters Hotel buying liquors. He, in his own testimony, admitted 
that he had bought drinks for various voters in that ward, and there 
was also evidence introduced showing that there was also liquor in 
a private dwelling house close to one of the polling places on election 
day. 

As far as the use of money is concerned, in addition to what I 
referred to on yesterday — on yesterday I spoke of the payment of 
money to one Dolan, which is referred to on page 307 of the record, 
and also to one Purcell, which is referred to on page 107 of the 
record, and also to one Sheppard, a colored man, for distributing 
posters. 

Mr. Innes. Circulars ; that is in the record. 

Mr. Prout. That was $27.85. Then there was an amount paid to 
one Mason for holding a rally for colored persons, of which no 
itemized account was made. The amount of that was $58.75. Then 
there is further testimony in regard to that, the testimony of John J. 
Devlin, on page 127 of the record, and also the testimony of one 
W. J. Lally, on pages 290, 296, and 305 of the record ; the testimony 
of Peter J. White, on page 309, the testimony of Joseph A. Freeman, 



36 CONTESTED-ELECTIOlSr CASE HORGAN VS. TINKHAM. 

on page 285, in reference to $50 paid to the secretary of the Kearsage 
Club ; the testimony of Keyes, and the testimony of McLaughlin, as 
to the demands of Mr. Duffin, and the testimonj^ of the contestant on 
pages 358, 359, 360, and 363 ; and then also the testimony of Michael 
J. Eedcling, at page 262, in regard to the payment of $17 to one 
Turley and the payment of $10 to the Democratic Central Club ; and 
also the testimony in regard to the giving of a check to one Penshorn, 
Avhich testimony appears on page 265 of the record. 

As far as that check for $50 is concerned, I do not want to mis- 
lead the committee. I would say there was a check produced at the 
hearing for $50, which was paid by the secretary of the Republican 
legislative committee of the Massachusetts Legislature to Mr. Pens- 
horn. AVhether that check, which the evidence, as far as we are con- 
cerned, shows Mr. Penshorn says Avas paid by Tinkham or for 
Tinkham, this other check was paid for some other purpose. It is 
possible it was the same check, and it is also possible there were two 
different checks. 

There is also the testimony of one Carl Herman Aspacher, on 
page 330 of the record, who testified that he had been paid $5 for 
tickets for some dance, and also testified that any organization that 
went to Mr. Tinkham could get at least $2.50 for dance tickets. 

That is important for several reasons, as a large part of these 
things, particularly as far as dance tickets are concerned, were made 
for campaign purposes, and there Avas no one of them accounted for 
in the list of expenditures as filed by the contestee. 

In addition to the evidence in regard to specific payments there is 
also the evidence of a great many Avitnesses, such, for instance, as that 
found on page 273 and also that found on page 276 of the record, 
that it Avas the general feeling that Mr. Tinkham Avas loosening up. 
"Men that avouIcI be complaining before that, afterAvarcls they did 
not have any complaint to make — they were all fixed up." Then 
there is other general eAddence to the effect that toAvard the latter 
part of contestee's campaign the feeling changed throughout the dis- 
trict. In fact, as expressed by one Avitness, instead of being called, 
as he had previously been called, George " Hold On " Tinkham, he 
Avas referred to as George " Golden " Tinkham. 

Then there is also the evidence, on page 325 of the record, of the 
payment of $5 to Charles Wonderley and the evidence, on page 326 
of the record, of the payment of $5 to Thomas Douglas. 

In addition to that there is the testimony in regard to promises of 
positions given to one Phelan. I believe the contestee had promised 
him a job. 

Mr. Innes. That is not so. 

Mr. Prout. Then Avhat Avas it? 

Mr. IxNEs. He gaA e him a letter of introduction to somebody. He 
told you all about it. 

Mr. Proitt. Then there Avas also the testimony — Avhich Avas de- 
nied — of a promise of a position as secretary to one Sheerin and the 
promise of a position to the daughter of a voter named Harol. Harol 
testified that if he made that statement, that Mr. Tinkham had 
promised the position, he probably made it jokingly. 

There is also the testimony, on page 359, of the payment of $20 to 
one Donahue and the payment of $10 to one Charles Smith. 



CONTESTED-ELECTION CASE HOKGAN VS. TINKHAM. 37 

Ml". Eamseyek. Did Senator Horgaii and Senator Tiniility serve 
as colleagues in the Massachusetts State Senate^ 

Mr. Pkout. Yes. 

Mr. Magee. For lio-w long'!? 

Mr. Prout. Mr. Morgan served three years and Mr, Timility 
served three years, but not all at the same time. I think there was 
only one year that they served in the senate together. 

Mr. Ka:\iseyek. When did Mr. Tinkhani (juit the State senate i' 

Mr. Pkout. In 1912. 

Mr. Inxes. It was in the same year when he ran for Congress. 

Mr. RA:srsEYEif. ^Vas Mr. Morgan in the last legislature^ 

Mr. Prout. Mr. Morgan just completed his term as senator. Mr. 
Tinkham comj^lete^l his term as senator in 1912, two veai's before 
that. 

Mr. Innes. That is correct. 

Mr. Prout. As far as the ettect of the AValsh-Tinkham card is 
concerned, which I spoke of yesterday, somebody inquired as to the 
standing of those young men. One of the signers was the son of a 
former chairman of ward 22 and the other was the son-in-law of a 
])rominent Democrat, and both were well known and their party 
affiliations were well known; that is, they were well known as Demo- 
crats throughout tliat ward who Avere friendly to Tunilty. 

At one part of the record there was some testimony to the efi'ect 
that the signature of Reynolds was put on without his knowledge 
iind consent, but he testified that it was done with his knowledge anfl 
consent; that he assisted in sending the cards out. 

The fact that the cards were sent out linking the name of the 
Republican candidate for Congress with the name of the Democratic 
candidate for governor, being signed by two well-known Democrats 
of the ward, was to convey the impression that both of the names 
were the names of Democrats, and I think that is of great impor- 
tance. Of course, it is true that the party designation is placed after 
the name of the candidate; but you gentlemen know that the voters 
are often careless, and they get the name of a candidate in the wrong 
coltunn; in a great many cases they pay no attention to wliat comes 
after his name. 

The only other i)aymeut of money was the i)ayment of money for 
a ticket to the dinner of the colored Masons, which the contestee 
admitted and which was not accounted for in his list of campaign 
expenses, and concerning Avhich he testified that he attended after the 
dinner Avas over and while the festivities were in progress. 

Mr. Tillman. What did that dinner cost? 

Mr. Prout. $10. 

Mr. Ro(JERs. Do you contend that expenditures of that sort, which 
might be fairly attributable to the fact that a man was in a campaign, 
or which might not be at all attributable to that fact, should be 
included in a cami)aign return? I am referring to such things as the 
purchase of tickets. 

Mr. Prout. Where a man purchases tickets for organizations to 
which he does not belong and for an affair which lie does not go to. 
where it is in evidence that anyone who has tickets to sell can go to 
him and get at least $2,50 in exchange for his tickets, and where 
it is also a well-known fact in Boston that it is very chea]> to get 



38 CONTESTED-ELECTIOJSr CASE HORGAISr VS. TINKHAM. 

tickets printed and easy to sell tickets, Avhether there is any organ- 
ization or not, and get money that way, it is only a very superficial 
way to gloss over the payment of money; and that being the case, 
we maintain that it should be counted. 

Mr. Rogers. You claim that the evidence is fairly indicative of the 
fact that it was a subterfuge in this case ? 

Mr. Peout. Yes, sir. 

The Chairman. Did Mr. Tinkham attend this dinner you have 
referred to? 

Mr. Prout. You mean the colored Masons' dinner? 

The Chairman. Yes. 

Mr. Prout. Yes. 

Mr. Innes. Is there any evidence of that fact? 

Mr. Prout. Yes. 

Mr. Innes. The organization was not a political organization; it 
was a fraternal organization. 

Mr. Magee. Is there any statute in Massachusetts providing that 
persons may not approach a candidate for public office for the pur- 
pose of selling tickets of this character ? 

Mr. Prout. No, sir. 

Mr. Magee. I think we have such a statute in our State. 

Mr. Tillman. Along the line of Mr. Magee's suggestion, suppose 
a candidate should give a dinner costing $500, would you consider 
that he should report that fact, the expenditure of that money among 
his expenses ? 

The Chairman. Do you think he would have attended the dinner 
of the colored Masons if he had not been a candidate ? 

Mr. Prout. Undoubtedly not. 

Mr. Tillman. Suppose he gave a feast that cost him $500. Should 
he report that money among the items of his expenses ? 

Mr. Prout. If it was given in the midst of a political campaign. 

Mr. Tillman. That is what I mean. 

Mr. Prout. There is no question in mj^ mind but what he should 
make a report of such an expenditure. 

Mr. Tillman. Then he should report the expenditure of the $5 in 
you have referred to in the same way, should he not ? 

Mr. Prout. Certainly; the mere amount does not make any dif- 
ference. 

Mr. Eamsayer. Do you think it is probable that a candidate would 
attend a dinner or any other gathering and pay his way in if he was 
not a candidate? In other words, do you think he would not have 
attended that dinner if he had not been a candidate ? 

Mr. Prout. If a man goes to an affair and pays 50 cents for a 
ticket, if he pays 50 cents for a ticket to a dance and does not dance, 
it is a legitimate political expense, and it should be returned as such. 
Where a man buys 5 or 10 tickets and does not buy them for himself. 
I say that that is not a legitimate expenditure, and also that it should 
be returned in the list of his expenses. 

Mr. Magee. Is there any statute in Massachusetts which prohibits 
a candidate from furnishing food or drink to any person when he is 
a candidate? 

Mr. Prout. Yes, sir. 

Mr. Innes. Drink; not food. 



I 



CONTESTED-ELECTION CASE HOKGAN VS. TiNKHAM. 30 

Mr. Pkout. The statute prohibits the furnishing of anything of 
value to anybody without making a return for it. That is the corrupt 
practices act which also prohibits the giving of drink for political 
],rurposes, whether it is returned or not. 

Mr. Magee. Whether it is buying a drink or buying a dinner, I 
think our statute specifies in regard to that. 

Mr. Prout. The Massachusetts statute does not specify; it is not 
specific. 

Mr. Innes. The Massachusetts statute explicitly exempts any form 
of entertainment called " private hospitality." Whatever that covers 
is a question of interpretation. 

Mr. Prout. The only thing remaining which I want to touch upon, 
I believe, is the matter of the votes cast, as to the contestee's allega- 
tion that the c(mtestant was not a strong candidate. I have already 
explained to the committee that the district is a Democratic district, 
and has been a Democraic district for 10 or 12 years, and has always 
sent Democrats to Congress, and is Democratic for other offices, for 
President, for governor, and so on down the line, and a compilation 
of votes in the various wards for ward offices, not only on this par- 
ticular day, but on every election day, has always shown it to be 
Democratic for every office, with the exception of this particular one. 

Mr. Innes. Do you ^ant to make that statement, Mr. Pront? 

Mr. Prout. In a broad way. 

Mr. Innes, In the face of our figures here? It seems to be a waste 
of time, because the figures show that that is not so. 

Mr. Prout. As far as the votes in the wards in 1914 are concerned 
somebody requested yesterday that we get that and I have the vote 
in the varioTis Avards here, and I will read that into the record. These 
figures cover tlie vote for governor, for lieutenant governor, for Con- 
gressmen, for the senate — that is, the State senate — and for the 
governor's council. 

In ward 18 the Democratic vote for governor was 1,256 and the 
Republican vote 655; the Democratic vote for lieutenant governor 
was 1,149 ond the Republican vote for lieutenant governor was 666; 
the Democratic vote for Congressman was 920 and the Republican 
vote for Congressman was 934. The Democratic vote for the State 
senate, that is, the independent Democratic vote, was 1,338 and 
the Republican vote for the State senator was 546. The Democratic 
vote for the governor's council was 1,141 ; the Republican vote for 
governor's council was 707. 

In ward 19 the Democratic vote for governor was 3,031, while the 
Republican vote for governor was 486. The Democratic vote for 
lieutenant governor was 2,852, while the Republican vote for lieu- 
tenant governor was 565. The Democratic vote for Congressman was 
2,641, while the Republican vote for Congressman was 928. The 
Democratic vote for State senator was 3,225, while the Republican 
vote was 380. The Democratic vote for governor's council was 2.947, 
while the Republican vote was 604. 

In ward 22 the Democratic vote for governor Avas 2,562, Avhile the 
Republican vote Avas 1,412. The Democratic vote for lieutenant 
governor Avas 2,333, while the Republican vote was 1,559. The Demo- 
cratic vote for Congressman Avas 1,951, Avhile the Republican vote 
Avas 1,972. The Democratic vote for State senator Avas 2,595, while 



40 CONTESTED-ELECTIOIST CASE HOEGAIST VS. TINKHAM. 

the Eepublican vote was 1,371. The Democratic vote for governor's 
council was 2.342, while the Eepublican vote was 1,625. 

The total Democratic vote in wards 18, 19, and 22 for governor 
Avas 6,849, while the total Republican vote for governor was 2,553. 
The total Democratic vote in wards 18, 19, and 22 for lieutenant 
governor was 6,334. while the total Eepublican vote was 2,790, The 
total Democratic vote for Congressman in w^arcls 18, 19, and 22 was 
5,512, while the total Eepublican vote for Congressman was 3,834, 
The total Democratic vote for State senator in wards 18, 19, and 22 
was 7,158, while the total Eepublican vote for State senator was 
2,297, The total Democratic vote in wards 18, 19, and 22 for gover- 
nor's council was 6,430, while the total Eepublican vote for gover- 
nor's council was 2,936. 

As far as a comparison of votes, either on that clay or on previous 
days is concerned, and the method of ai'riving at that, I would call 
the attention of the members of the committee to the case of Cook v. 
Hinds, where, in quoting McCrary on Elections, the committee said : 

When the A'oter can not, by reas()nnl)le diligence be found, ov being found, 
refuses to state for whom lie voted, it may be shown l>y circumstances. And 
here great latitude must be allowed. 

And in the same case reference was had to extraneous circum- 
stances. 

Mr. Oglesby. Was that the case in Avhich the witnesses were 
charged with having received something of value for their votes? 

Mr, Pkout. Yes, sii 

It is shown generally that the men who employed these miners were favorable 
to Mr. Cutts ; that they wei'e l)rought to the indls l)y Republicans; that their 
votes wei'e challenged l>y Democrats and greeubackers (contestant's friends) 
and their votes ui'ged and directed by Republicans. 

And the fact that they Avere brought to the polls by Eepublicans 
and their Azotes challenged by the people of the opposite party Avas 
held to be indicatiA^e of their vote. And again in the Broad Seal 
case (1 Hinds, par. 799) it Avas held that — 

Although in numerous instances the voter, being examined as a witness, 
A-oluntarily disclosed the character of his vote, yet in many cases he either 
did not appear, or, a]>pearing, chose to avail himself of his legal right to refuse 
to answer on that point. In such cases the proof of general reputation as to 
the political character of the voter, and as to the party to which he belonged at 
tlie time of the election, has been considered sufficiently demonstrative of the 
complexion of his vote. 

Then, again, in the case of Bromberg v. Haralson (2 Hinds, par. 
907) is Avas held : 

It would perhaps be fair to assume that the -whole vote cast at this in-ecinct 
in excess of the vote of two years before, when no such influence existed, was 
cast by voters who came there under the influence of the corrupt practices and 
promises disclosed in the evidence. 

And this when the only evidence disclosed Avas a rumor circulated 
among the voters that in order to obtain certain material benefits it 
Avas necessarA^ for them to vote the Eepublican ticket, which rumors 
were not traced to contestee, the committee holding that it Avas his 
duty to disabuse the Ax-ters of the Avrong impression. 

NoAv, Mr. Chairman, as to the Azotes as cast and the contention of 
the contestant as to hoAv they should be counted — but before I get to 
that pai'ticular matter I see I have made a note here in reference to a 



CONTESTED-ELECTrOlSr CASE HOEGAX VS. TINKHAM. 41 

matter that I want t(t speak about bi'iefly. That is in regard to a 
contention in the brief of the contestant that the contestee admitted 
that he paid the sum of $1 on one occasion and another $1 on another 
occasion to a voter by the name of Boland. I want to retract that 
statement. It Avas an error, and contestee did not accept that dollar, 
but he denied that he did make that payment, and I do not want to 
have it stand that I charged him with that when it was an error. 

Mr. Magee. Do you contend that you raise any more than a pre- 
sumption of wrongdoing? 

Mr. Pkout. No, sir; aa'c claim there is direct evidence— in many 
€ases specific evidence and in some cases uncontradicted evidence of 
wrongdoing. For instance, in the matter of the election returns, 
that is admitted 

Mr. Magee (interposing). I mean in reference to the votes and 
the question raised by Mr. Timilty. 

^Ir. Proit. There is very direct evidence of the i)ayment of the 
mone}^ to the voters and of the use of liquor. Then there is a lot of 
other direct evidence which I think I have referred to on those points. 

Mr. Magee. What is it upon which you rested on a presumption? 
Was that in reference to the conspiracy item ? 

Mr. Prout. I can not recall just in what connection T made that 
statement. 

Mr. Magee. I had an impression yesterday that you raised the 
question of presumption. 

The Chair-Max. I think that was where he said the fact that SeHa- 
tor Timilty had denied on the stand that he had entered into a con- 
spiracy raised the presumption that there was something illegal in 
his action. 

Mr. Magee. That Avas Avhat I was trying to get at, Avhether in your 
contention in regard to the matter of conspiracy you rely on pre- 
sumption. 

Mr. KoGERs. Can you give us, in a few words, the precise things 
which you allege as having been committed by Mr. Tinkham, per- 
sonally, in violation of either statute law or connnon law to prove 
conclusively an illegal use of money, bribery, or any other similar 
unlawful act. 

Mr. Prot't. Of course, it is not necessary under the laAv that those 
things shall be j^roven to have been done personally by Mr. Tink- 
ham. It is sufficient if they were done in his behalf, with or without 
his knowledge, by his agents, if he as a candidate got benefit from 
them. In that case it is the same as if he did them himself. 

There are several things in the evidence which involve Mr. Tink- 
ham personally; that is. the payment of various sums of money for 
tickets and various expenditures which Avere not included in his 
returns. 

Mr. TiEL:\rAx. I Avish you Avould develop the first question Mr. 
Rogers asked you. He asked you to show Avhat Avas actually "done in 
the interest of Mr. Tinkham which Avas illegal. Avhether he Avas the 
beneficiary of it, or Avhether he did it directly. 

jNIr. Prout. As far as things he did directly are concerned, I haAe 
ansAvered that. As far as the things Avere done in his behalf were 
concerned, and Avhich did affect the issue, that includes practically 
everything. And I think, as I developed it yesterday and as I have 



42 COISTTESTED-ELECTIOIsr CASE HOEGAN VS. TINKHAM. 

shown it to-day, in the payment of money, the use of liquors, the in- 
timidation of voters by Timilty, some of which was done in his be- 
half, and the facts as we look at them from this end all show that 
that was of some material benefit to him. 

Mr. Rogers. Do you allege that the onlj^ thing which Mr. Tinkham 
did personally and which can be complained of was the purchase of 
these tickets, for which he failed to make a return ? 

Mr. Peout. In addition to that, the engineering of the Walsh- 
Tinkham card, paying for it and paying for these tickets. That is 
all I have referred to as personal which was unaccounted for. 

Mr. Magee. Suppose Senator Timilty or some of his helpers did 
something of which Mr. Tinkham had no knowledge. Is it your con- 
tention that if they did anything themselves which was in direct vio- 
lation of law, which was illegal, that that would affect the status of 
Mr. Tinkham under your Massachusetts law ? 

Mr. Peout. Yes, sir; anything done by anybody in behalf of Mr. 
Tinkham, provided they were agents of Mr. Tinkham. 

Mr. Magee. That is exactly what I am getting at, whether you do 
not have to establish the relation. If you do not have to establish 
that, what would prevent any two, three, or four persons vitiating 
the election of any candidate? 

Mr. Peout. Of course, some of that is so. 

Mr. Magee. As I understand it, under your law" j^ou must estab- 
lish some relation existing between the candidate and the parties 
cherged with the wrongdoing. 

Mr. Prout. Under the general law the agency can be presumed 
by the doing of acts with the knowledge of the principal. I do not 
mean to contend that any Tom, Dick, or Harry opposed to a candi- 
date could go out and do things which were illegal and then fasten 
them onto the candidate simply because he did them on behalf of 
the candidate. 

Mr. Magee. What I mean is this: I am asking for informa- 
tion 

Mr. EussELL (interposing). If he is a bona fide agent, then he 
acts directly for the beneficiary, and then the candidate would be 
responsible for his action? 

Mr. Prout. Yes. 

Mr. Rogers. How manj^ items are there disclosed in the evidence 
imcontradicted, of cases where Mr. Tinkham made expenditures 
which you say are attributable to his campaign and which are not 
returned in the statement to the secretary of the State of Massa- 
chusetts ? 

Mr. Prout. There was the purchase of tickets 

Mr. Rogers (interposing). Can jon be a little specific in the 
answer to that inquiry? 

Mr. Prout. I think I have already touched on most of those. 

Mr. Rogers. If you could combine them at this point it would be 
useful. 

Mr. Prout. You mean everything? 

Mr. Rogers. I would like to have a reference at this point to every 
case where unreturned campaign expenses are charged by the con- 
testant. 

Mr. Prout. There is the evidence of Edmund Dolan at page SOT 
of the record. Then there is the testimony of the contestee at page 



CONTESTED-ELECTION CASE HORGAN VS. TINKHAM. 43 

492 of the record in reference to a payment of $58.75 to Mason, and 
also the testimony of the contestee on page 493 of the record in 
reference to the payment of $27.85 to Sheppard. 

Mr. Innes. They were returned, of course? 

Mr. Ramseyer. Those references are on your brief? 

Mr. Prout. Yes. The last two amounts to which I referred were 
returned. The references are contained in the brief under that head 
and I imagine it would save time to refer to that page in the brief. 

Mr. Russell. It seems to me if you could make a summary of 
those things and put it in the record at this point, it would serve the 
purpose desired. 

Mr. Prout. They are all in the brief, in the brown-covered brief. 

Mr. Rogers. I have not read the brief for several days, and I do 
not recall that there is a specific place where the unreturned elec- 
tion expenses, as charged, are included. 

The CnAiR]MAN. On page 25, under the heading "Lavish use of 
money in bribery of Democratic voters" there seems to be a refer- 
ence to all of these instances. 

Mr. Innes. Perhaps I can assist Mr. Prout. He makes an allega- 
tion in regard to a dollar to Dolan 

Mr. Prout (interposing). I would refer the committee, in order 
to save time, to page 25 and page 2(> of the brief in regard to that 
|>articular point. There is no division made as to the money that 
is alleged to have been paid for which no return was made, but in 
the contestee's brief there is a copy of his return. 

Mr. Ramseyer. Then, on page 35 of your brief you give a list of 
his expenditures — the amount of his expeditures — showing what was 
accounted for. 

Mr. Prout. Those are expenditures. 

Mr. Ramseyer. The second item, which is said to be not accounted 
for in vour statement, is "Amount paid to Anchor Linotype Co.', 
$2,139."' 

Mr. Prout. That was not accounted for in his return because of his 
belief or interpretation of the law that printing was a personal ex- 
pense, and therefore he Avas exempt from accounting for it. 

Mr. Ramseyer. Your contention is that he should have accounted 
for it? 

Mr. Prout. Yes; as well as all the other things which follow that 
statement. 

Mr. Ramseyer. Suppose the committee finds with you on that 
proposition and finds that Mr. Tinkham did expend more than he 
was entitled to expend under the Massachusetts law. what do you 
contend would be the result? Should this committee contend Mr. 
Tinkham was not elected and put Mr. Horgan in Mr. Tinkham's 
seat, or just declare the seat vacated? That is, assuming 

Mr. Prout (interposing). That is for the committee to say. It 
depends, I imagine, upon the nature and the extent of the proof and 
as to how the committee views the evidence. If the committee find, 
or if in the minds of the committee there was a violation of the law, 
of course, that point is difterent from the other points. 

Mr. Ramseyer. In order to make it clear, assume that the commit- 
tee finds against you in relation to everything except the matter of 
returns. 



44 



CONTESTED-ELECTIOJS' CASE HORGAN VS. TINKHAM. 



Mr. Prout. In that case the committee would not be justified in 
seating the contestant. 

Mr. Eamseyer. But Avould be justified 

Mr. Prout (interposing). In unseating the contestee. On the 
other points 

Mr. Eamseyer (interposing). I understand your position on the 
other points. 

Mr. Prout. I would like to include in my statement this other 
tabulation in regard to the votes for the various other offices in the 
district on that election day. 

The table referred to is as follows: 



Ward. 


Gov- 
ernor, 
Walsh. 


Lieu- 
tenant 

gov- 
ernor, 
Barry. 


Con- 
gress, 
Ilorgan. 


Senate, 
Demo- 
crats. 


House, 
average. 
Demo- 
crats. 


Gov- 
ernor, 
McGall. 


Lieu- 
tenant 
gov- 
ernor. 
Gushing. 


Con- 
gress, 
Tink- 
ham. 


Senate, 
Repub- 
licans. 


House, 
average. 
Repub- 
licans. 


10 


922 

466 
1,304 
1,2.56 
3,031 
2,292 
2, 562 
2,817 


795 
359 
1,177 
1,149 
2,852 
2,007 
2,333 
2, 552 


724 
368 
1,066 
920 
2,641 
1,792 
1,951 
2,401 


731 

393 

1,157 

11,338 

13,225 

2,024 

12,595 

2,586 


631 
338 
1, 175 
1,062 
2, 644 
1,829 
2,073 
2,590 


1,417 

1,628 

907 

655 

480 

2,028 

1,412 

2,435 


1,545 
1,714 
1,011 
666 
565 
2,201 
1,559 
2,631 


1,601 
1,643 
1,148 
934 
928 
2,411 
1,972 
2,873 


1,445 
1,607 
1,092 
546 
380 
2,146 
1,371 
2,844 


1 400 


11 


1 549 


12 

18 


'814 
621 


19 


472 


21 


2 080 


22 

23 


1^923 
2,264 


Total.... 


14, 650 


13,224 


11, 863 


14,049 


12,342 


10, 968 


11, 892 


13, 510 


11,431 


11,123 



1 Democratic Senate; includes regular Democrat and independent Democrat. 

Mr. Prout. Mr. Tillman inquired yesterday as to the size of the 
colored vote in ward 18. It is in evidence that the total vote in the 
ward is 3,084, and the contestee, Mr. Tinkham, testified there were 
between TOO and 800 colored voters in the ward. He testified to that 
on page 493 of the record, and the contestant testified on page 554 of 
the record that in his opinion there are about 250 colored voters in the 
district. It is not in evidence, but that figure of 250 was too low. As 
a matter of fact, there are in the vicinity of 400 colored voters in the 
district. 

The only other point to be touched upon I will touch on very 
brieflj^ That is, the allegation of the contestee that the contestant 
was a very weak candidate, and for various other reasons he was 
defeated. 

In the first place, the circular of the contestant sums up his quali- 
fications for the office of Congressman. He had had many years of 
legislative experience, had just completed a term of three years in the 
Massachusetts Senate, having been elected as a Democrat from a strong 
Eepublican district, had practicall}^ the united support of all the 
labor unions in the district, as is shown by reference to the records 
from pages 534 to 550. 

He had the indorsement of the State branch of the American 
Federation of Labor, and the indorsement of various other local 
unions. In addition to that he had the support of the Democratic 
governor and the Democratic State treasurer and the Democratic 
State auditor, and the Congressmen in that district, including Con- 
gressman Gallivan and Congressman Tague. 

Mr. Innes. There is no evidence of that. 

Mr. Prout. Yes, there is, and various other supporters are referred 
to on page 376 of the record. There is also a letter from Mayor 



CONTESTED-ELECTION CASE HOEGAN VS. TINKHAM. 45 

Curley of Boston, on puoe ;>S1 of the record. There are also indorse- 
ments of hibor unions found on pages 374 and 375 of the record, and 
also on page 37(5 and in the exhibit comprising largely letters from 
legislative agents of the union on pages 414 to 4()2 of the record. 

The point also Avas made by the contestee that the two men who 
opposed the contestant in the primaries confessed the fact that they 
did not injure him in the campaign. There is no evidence that that 
was any more than usually follows such a case. As a matter of fact, 
there is evidence that botli of these men were with the contestant 
and supported him on the stump up to and including a Aveek or 10 
days before the election. 

Mr. RoGEiJS. Is Mr. Horgan's senatorial district included wholly 
within the congressional districts 

Mr. Prout. One M^ard is in the district and one is not. 

Mr. Rogers. Can you give us the wards included in the former 
senatorial district? 

Mr. Prout. The former senatorial district consisted of wards 23 
and 24. Ward 23 is in the congressional district, and 24 is in Mr. 
Gallivants district. 

Mr. Rajisever. Does Mr. Horgan live in ward 23? 

Mr. Proi't. Yes. The only other point I would ask the members 
of committee to consider is in determining whether Mr. Horgan is a 
weak candidate in addition to his legislative experience and record 
and the support of the various leaders of the Democratic Party in 
the State as well as in his district, with the exception of the few 
men referred to — he is here; you can look him over. He looks like 
a pretty able, intelligent man. and certainly the votei's in the district 
would not be prejudiced against him on account of his personal 
appearance or his handling of the Queen's English. 

Mr. TiLL.ArAN. AVas Walsh a popular Democrat an<l a popular 
governor ? 

Mr. Prout. He was a very popular Democrat. 

Mr. TiLL:\rAN. Did he poll his full party vote in this last election if 

Mr. Prout. Yes, sir; he did. 

Mr. TiLLMAx. Was McCall a popular Republican; a strong, clean 
man ? 

Mr. Prout. McCall is the present governor of Massachusetts, who. 
since he has been elected, has been mentioned frequently as a can- 
date for the Republican nomination for the Presidency, and, ac- 
cording to the testimony of the contestee in his brief, he says that 
Samuel W. McCall is one of our best known and most highly 
respected men in public life. 

Mr. Till:man. I will ask you if INIr. McCall did not serve in 
Congress ? 

Mr. Prout. He served 12 or 14 years in Congress. 

Mr. Ttllmax. I see that Mr. Tinkham got bigger votes than Mr. 
McCall out of all the wards in this district. 

Mr. Prout. That is due, in a great measure, to the i)opularity of 
the Democratic candidate for governor. You will also note that a 
comparison of Mr. Tinkham's votes and Mr. McCalTs votes shows 
that the vote is closer in Tinkham's own ward than in any other. 

]Mr. Tillman. In the tenth ward McCall received 1,417 votes and 
Tinkham 1.601. Mr. Tinkham got a larger vote than jNIcCall in 
that ward. 



46 CONTESTED-ELECTIOlSr CASE HOEGAN VS. TINKHAM. 

Mr. Peout. That is a machine ward. 

Mr. Tilj:,man. I noticed in the eleventh ward Mr. McCall received 
1,628 votes and Tinkham 1^643 votes. You will notice that Tinkham 
got a larger vote there than McCall got. Then in the twelfth ward 
McCall received 907 votes and Tinkham 1,148 votes. Then you will 
notice that in the eighteenth ward McCall got 655 votes, while 
Tinkham received 934, and in the nineteenth ward McCall received 
486 votes, while Tinkham received 928, and the twenty-first ward 
McCall received 2,028 votes and Tinkham received 2,411 votes. In 
the twenty-second ward McCall received 1,412 votes and Tinkham 
received 1,972 votes, while in the last ward, the twenty-third ward, 
McCall received 2,435 votes and Tinkham received 2,873. You will 
observe that in every ward Mr. Tinkham received a larger vote than 
Mr. McCall. Then in the total vote of that district McCall received 
10,968 votes, while Tinkham received 13,510. 

Mr. Ma GEE. Where does Mr. Walsh live ? 

Mr. Prout. In Fitchburg. 

Mr. Magee. He was a very popular candidate ? 

Mr. Prout. With the Democrats; yes. 

Mr. Magee. And with the independent citizens, too. 

Mr. Prout. At his first election he was elected by 50,000 or 60,000 
majority. He was only defeated at the last election by about 84. 

Mr. Magee. How many terms was Walsh elected governor ? 

Mr. Prout. He was elected lieutenant governor twice and was 
elected governor twice and was defeated for a third term as governor. 

Mr. Oglesby. In reading over your brief, Mr. Prout, I was very 
much interested in noting Mr. Timilty seemed to be a man of parts 
and a man of influence ; and if the statements made in your brief are 
warranted by the fact, he was quite influential in determining this 
election, as he worked to the disadvantage of the Democratic Party. 
I believe, too, he holds an important position in the Democratic or- 
ganization. 

Mr. Prout. He was president of it. 

Mr. Oglesby. Has he a position there now.? 

Mr. Prout. He is the present State senator from that district. He 
represents his own ward as head of the ward committee, but he has 
been removed as head of the city committee. 

Mr. Oglesby. Has any action been taken to discipline Senator 
Timilty for his treachery to the party in this campaign ? 

Mr. Prout. The only things you could show as evidences of an at- 
tempt to discipline him is the fact that in the last election, in the 
primary campaign, there were 50 per cent more votes cast for other 
candidates than for Mr. Timilty. There were two other candidates, 
and because he succeeded in dividing the opposition he was able, with 
the support of his own ward, to obtain the Democratic nomination, 
which is equivalent to election. 

Mr. Oglesby. Has not your Democratic organization in Massa- 
chusetts, or in Boston, a clause under the law, or under rules of its 
own constitution, for disciplining the members of your organization 
who have proven unworthy of their associates ? 

Mr. Prout. The only way that could be brought about would be 
by the failure to reelect them to whatever offices they hold in the city 



CONTESTED-ELECTTON CASE HOEGAN VS. TIISTKHAM. 47 

committee, which is made up of the chairmen of the ward committees, 
and the ward committees are elected by the people ; and in view of the 
fact that Mr. Timilty dominates his own ward, he has had no diffi- 
culty in that regard. 

Mr. Innes. They removed four men recently. 

Mr. Oglesby. We have a provision in New York whereby members 
are disciplined for any failure to properly represent the interests of 
the party. In fact, it is now in the statute law. Formerly it was done 
under the rules and regulations adopted by the organization. What 
I was trying to find out was whether you have such a provision in 
the law of Massachusetts or in the regulations of your party organiza- 
tion. 

Mr. Pkout. There is no such provision whatsoever, and the onlj^ 
thing that we have to take its place is the custom of certain self- 
constituted persons of reading certain individuals out of the party. 
That is not official in any way; it is not recognized by the organiza- 
tion and it is not in the statute law. 

Mr. Oglesby. There is no evidence whatever as to the fund of 
S12.000 of Mr. Tinkham other than a newspaper story? 

Mr. Prout. That and a testimonial of witnesses as to rumoi's. 
There is no direct, specific evidence on that point in regard to that 
amount or any amount. 

Mr. Oglesby. Do you think there is enough evidence in the record 
on that subject to warrant you in asking this committee to seriously 
consider that as one of the charges? 

Mr. Prou r. In view of all the evidence that is in tending to show a 
conspiracy and the character of Mr. Timilty, as testified to by 
various witnesses, and the fact that he did actually support Tinkham 
Avith no reason, as appears from the evidence and from his perjury on 
that point, and his desperate attempts to conceal evidence tending to 
shoAV that he did sapport Tinkham, all that leads to the inevitable 
conclusion that there was something he was concealing and wanted 
to conceal. 

Mr. Oglesby. Then you contend that the support of Mr. Timilty 
by itself was evidence of wrongdoing on the part of Mr. Tinkham, 
do you ? 

Mr. Prout. No, sir. 

Mr. Magee. What is the business of Senator Timilty ? 

Mr. Prolit. He is a city paving contractor. Yesterday morning's 
Boston Herald objected to his sole vocation as a paving contractor, 
and at the ])resent lime there is a great deal of agitation in Boston 
joncernirig liis business as a paving contractor and the amount of 
money he gets from the city and the'amount of money he charges the 
city for doing that work. 

Mr. Magee. Is he a man of means? Has he money credit? 

Mr. Prodt. He is referred to as " Diamond Jim " Timilty. 

Mr. Magee. What I was asking is whether he has money credit. 

Mr. Prout. The only money credit he has is the money he made 
liimself in his business as a paving contractor. 

Mr. Tillman. Has he got a great deal of money? 

Mr. Prout. The rumorls that he has. That is all I have to present 
at this time, Mr. Chairman. 



48 CONTESTED-ELECTION CASE HOEGAN VS. TINKHAM. 

ARGUMENT OF CHARLES H. INNES, ESQ., ON BEHALF OF THE 

CONTESTEE. 

Mr. Innes. Mr. Chairman, I am going to be as short as I can, but 
at the outset I want to emphasize something you may consider as 
perhaps not fully proper but which I think important in this case. 
I Avant to emphasize the fact that every statement of fact in our 
brief is contained in the evidence ; that no coiiclusion has been drawn 
in our brief that is not supported by the evidence; and that no con- 
ckision has been drawn that is not justified by the record. We have 
not given any sweeping statements of what' the witnesses testified, 
but the testimony itself is quoted. And the best evidence of that is 
the fact that — and I spent a great deal of time on it, because it was 
important from our standpoint to have these rumors, at least, shown 
not to have any foundation — in the contestant's reply brief there is no 
correction or even a suggestion that Ave have been at all unfair in any 
way in the conclusions Ave have draAvn in our brief, Avith the one 
exception Avhere Mr. Prout says we should have stated the hotels sold 
liquor on election days. We did not state it. I quoted the hiAv. 
That is the only criticism he has to make of that brief. 

NoAv, our brief is filled Avith references Avhere the evidence has 
been absolutely misstated by Brother Prout, Avhere he has quoted evi- 
dence Avhich does not exist, Avhere he has referred to a Avitness's testi- 
jnony Avho neA^er testified at all in accordance Avith the way the brief 
says he did. And that again is reiterated in this last brief. 

It is unpleasant to speak of these misstatements, but I think it is 
part of my duty to do so. The first statement in this brief in reply, 
at Avhich I am astonished, is on page 11. He says the Avitness testified 
that, in conA^ersation Avith Mr. Duffin, an associate in the laAV office 
of contestee, this man boasted to him that contestee had illegally 
spent large sums of money in the congressional contest, and also 
stated that they kneAv contestant could not prove it. He also sa^'s 
in his brief that the testimony of this reliable Avitness is unequivocal 
and has not been denied by contestee's laAv associate, Mr. Duffin. 

Mr. Duffin's examination took but a page of the record. It Avas 
all conducted by Brother Prout himself; we had not the faintest 
idea at this time that there Avas going to be any suggestion made that 
Mr. Duffin had talked about anything because he Avas simply em- 
ployed in Mr. Tinkham's office. We did not know of the alleged 
conversation in this brief, but here is the alleged testimony, page 165 r 

Q. You liave not the slightest idea, then, as to how nnicli money his cam- 
paign cost him? — A. Oh, no; haven't any idea at all. 

Q. If you were to make a guess at it, what wouhl you say? 

Mr. Innes. Wait. 

The AViTNESs. It would l)e impossible for me to make a guess. 

Q. You haven't any information on wliieh you could make an estimate — A. 
None at all. 

Q. Did you ever say to anvbodv that it cost liim a barrel of money? — A. 
Oh, no. 

Mr. Innes. I enter a formal objection, because it may be that Mr. Morgan's 
may have cost .$1,000,000, so far as I know. So I have got to object to save 
our rights. 

Q. Did you ever tell auyliody that Tinkham spent money on the election 
that he didn't make any return for? — A. No. 

Q. You are quite certain of that? — A. A'ery sure. 



CONTESTED-ELECTIOX CASE IIOEGAN VS. TOKHAM. 49 

Q. Did you muki^ any stiitcnient that could he construed into that? — A. 
Never. 

Q. Did you make any .statement tliat Tinkham spent more money than the 
law aHowed, but that the other side couhhi't prove it? — A. Oh, no. 

Now, I want to know if there can be a more definite refutation of 
this campaign manager's statements of this source of information of 
the ehil) he and Duffin were members of— any more positive refuta- 
tion of that charge than Mr. DufUn's own testimony, brought out on 
the examination of Mr. Front? That is the first case. 

The second case in this little lirief of 11 pages 

The Chaikmax. There is not any doubt, though, that McLaughlin 
testified to that ? " 

Mr. Iknes. There is no doubt that McLaughlin testified that was 
so. 

The Chairman. McLaughlin said a certain thing, and this is 
Duffin's denial? 

Mr. Innes. Duffin was called first. And they called all of these 
people first, and it was all their evidence, and "they called for him 
and asked him first. I should have asked Duffin, ''Did you talk to 
McLaughlin?"' but I had not the faintest idea, and he asked the 
question himself, and Duffin denied it as specifically and unequivo- 
cally as he possibly could. 

Coming to the second proposition. I want to call your attention to 
this, because here is another illustration I find in' their brief, and 
that is the letter of Andrew J. Peters, which does not appear at all 
in the record and which is dated nine months after this evidence was 
taken. 

The Chairman. On this matter, Mr. Innes, I want to get this. I 
do not see anything wrong in their telling us. and if so, I want to 
know that McLaughlin so testified. 

Mr. Innes. I agree Avith you. 

The Chairman. Of course, we are to consider the question of ve- 
racity and credibility as between the two w^itnesses. 

Mr. Innes. May I interrupt? There is the other question, Mr. 
Chairman, that we have no evidence, except that Mr. Duffin said to 
Mr. McLaughlin that Tinkham had done that. And even that is no 
positive evidence, if he did say so, because he had no connection 
with Tinkham's campaign. He was a Democrat. 

The Chairman. There is no doubt McLaughlin said Duffin told 
him Tinkham had spent a lot of money. 

Mr. Innes. Exactly. - 

Mr. Tillman. What page is that of McLaughlin's testimony? 

Mr. Prout. Pages 250 to 254. 

Mr. Innes. Mr. McLaughlin did testify to that. I make no com- 
plaint about that, but I do make complaint about the statement in 
the brief that Duffin never denied that McLaughlin had that conver- 
sation with him. That is my complaint. 

Mr. Magee. You mean Duffin denied he had such a conversation? 

Mr. Innes. Duffin denied it ; he denied it specifically, the question 
being asked again and again, to which he replied " No," and then the 
eontestee's brief states he never denied it. This is an express conver- 
sation about a man he worked for having spent thousands of dollars, 
but nobody could prove it. 
46339—16 4 



50 CONTESTED-ELECTIOlSr CASE HOEGAJST VS. TINKHAM. 

Mr. Oglesby. McLaughlin's testimony of the statement to him? 

Mr. Innes. McLaughlin's testimony of the statement to him. The 
second case I want to make is Mr. Peters's testimony. They have 
©ffered here on page five a letter from Peters, dated October 22, 
1915. I do not know whether he wrote it, but I will assume he did. 
We had never seen it, and never had the chance to examine him 
about it; but here it is; it appears in the supplemental brief. 

Mr. E.AMSEYER. Who is this Peters? 

Mr. Innes. Andrew J. Peters, who was for eight years a Repre- 
sentative of that district in Congress, and is now Assistant Secretary 
of the United States Treasury. 

Mr. Ramseyer. Tinkham's predecessor? 

Mr. Innes. He was Tinkham's predecessor. 

The Chairman. Is this letter in the record? 

Mr. Innes. It is not, sir. 

The Chairman. You mean this brief is made up of letters not in 
the record ? 

Mr. Innes. It is. There are many letters in this brief. It is in 
the supplemental brief, the last brief filed. Now, that letter, which 
I want to read because you can see what it says, and I want to ex- 
plain why the letter became important, apparently, to have in this 
case. Here is this verv fine circular we have, delightful and familiar. 
The second thing vdiich stands out in that statement is what Andrew 
J. Peters, former Congressman and now Assistant United States Sec- 
retary of the Treasury, says of Senator Francis J.'Horgan: 

Senator Horgan's brilliant record for the past three years in the statehouse 
should commend itself to all the citizens of the eleventh congressional district 
and result in his triumphant election on November 3. 

That was important to have on that circular. It was important for 
this reason : Mr. Andrew J. Peters was a very prominent Democrat in 
©ur State. He was one of the men Mr. Timilty and Senator Doyle 
and some of the other men whose names have been brought into this 
before, were classed as friendly with. He did not announce his re- 
tirement from Congress until after Mr. Horgan had announced his 
entrance into the field. That is a fact, shown by the record. Mr. 
Horgan announced his candidacy against Peters in July as a candi- 
date for Congress in his place. Mr. Peters did not announce his with- 
drawal until some time later. And at that time everybody assumed 
that Mr. Peters was then considering the question of whether he would 
aun, and led everybody to think so, so that Mr. Peters's friends were 
confronted in Jul}^ with the statement that Mr. Horgan had entered 
the fight as a candidate for Congress in that district. 

Mr. MlGEE. How long had Mr. Peters been in Congress? 

Mr. Innes. Eight years; always having a large majority. Mr. 
Timilty (and this is Mr. Horgan's testimony) had talked over with 
Mr. Horgan the question of running himself for Congress. That is 
Horgan's testimony. He withdrew and ran for the Senate. Mr. 
Peters's friends supposed that Mr. Peters was going back at that time. 
In any event, he had made no decision. 

Now, gentlemen, I do not think Mr. Peters was opposed to Mr. 
Horgan, but I do say this: If you are looking for reasons why Mr. 
Horgan did not run well, a great many of Mr. Peters's friends natu- 
rally resented his candidacy at that time. That was the reason for 



CONTESTED-ELECTION CASE HORGAN VS. TINKHAM. 51 

that statement. Now, Mr. Peters wrote a letter, which is in the 
record. That was sent hy Mr. Peters to me, and his letter is here, page 
17 of our brief, in Avhich he says : 

My Dear Mk. Innes : Your favor of March 4 is at hand. I have not seen the 
circuhir of Mr. Ilorgan's you refer to as lieing used in the congressional cam- 
paign. Last fall I made several speeches in connection with the campaign for 
various Democratic candidates and spoke for the Democratic ticket in the 
eleventh congressional district, and Monday night before election. I did not, 
however, issue or authorize any statement in connection with any candidate. 

I pressed Mr. Horgan to tell us where he got that quoted state- 
ment. I pressed him also to know where the signatures which adorn 
the back page of this circular were obtained, and I asked the men 
whose names appear here (except Brother Prout, who was a lawyer 
in the case, and, of course, I did not ask him) where those signatures 
were obtained, and where the indorsement of Mr. Peters came from. 
Mr. Horgan's testimony on this subject was to the effect, and it is 
found on page 55.5 of the record, beginning near the bottom: 

Q. Senator, have you the letters from Mr. Peters commending your can- 
didacy? — A. I haven't got them with me. 

Q. Have you any letters from Mr. I'eters in reference to supporting you? — 
A. I received several letters from him. 

Q. I call your attention to the fact that I asked you to bring them here. — A. 
When did you ask me? 

Q. I have asked you on two or three occasions. I have asked Mr. Prout once 
or twice, and I have asked you once or twice. — A. Have you served notice on 
either myself or Mr. Prout? 

Q/ I asked Mr. Prout at a hearing to produce them, and asked you to look 
to see if you had them, and you said that you had them and would produce 
them.- — A. You have not asked me since I was on the witness stand. 

Q. You were here in court at the taking of depositions yesterday, when I 
asked Mr. Reddish about it. Y'ou heard his testimony about letters from Mr. 
Peters, did you? — A. I do not rememebr that part of his evidence. I was in 
the court room. I may not have been paying attention to him. 

Q. Do you remember my asking Mr. Reddish if he had seen any letters from 
Mr. Peters to you? — A. I may have. 

Q. You have not got them here now? — A. No. 

Q. Have you them on file? — A. I have them at home. 

Q. Favoring jour candidacy? — A. Letters in reply to conmumications from 
me asking him to write to different individuals. 

Q. Indicating his friendship to you? — A. Absolutely. 

Q. And his willingness to help you?^A. Absolutely. 

Q. Will you keep those until we go to Washington? — A. I certainly will 
produce them in Washington at the proper place. 

Q. You haven't thought it necessary to produce them here? — A. I consider 
them properly presentable before the committee at Washington. 

Q. That is why you did not produce them here? — A. That is the reason. 

So there is the reason. The introduction of this letter, dated long 
after that inquiry, not at all in answer to what I wanted to have, 
which I submit conclusively establishes, that a misrepresentation is 
contained in that circular and which may account for the reason why 
these circulars did not go out. as he says — why they stopped sending 
them out. I do not know, but it may account for it. 

I want to speak of one other thing in that brief, because I have not 
referred to it in my brief. 

Mr. Oglesby. Let me ask you right there : I do not think that 
has any bearing on why those circulars were not sent out. as I read 
it over, but Avliat bearing can that have on this case except possibly 
to explain why Mr. Horgan was behind the ticket? 

Mr. Innes. That is what it is strictly admissible on, I think. 



52 CONTESTED-ELECTIOjST case HOEGAN vs. TIISTKHAM. 

Mr. Oglesby. This examination and this occurrence after the elec- 
tion is not important. Do you claim that the publication of that 
statement, purporting to come from Mr. Peters, was an affront to his 
friends, and was one of the causes which made them refuse to vote 
for Mr! Horgan? 

Mr.- Innes. The publication of that statement has perhaps placed 
the right atmosphere about this entire contest. I consider that it 
vf as one of the most daring things I have seen done in politics. 

Mr. Oglesby. But my c^uestion is as to the effect on the election ? 

Mr. Innes, I think that is going to reproduce to your mind — I am 
not speaking of Mr. Horgan personally, but just the character of man 
he is, and the character of his friends, as to why they did not support 
him when it came to election. That is what I mean. 

The Chairman. Suppose that statement is false, and it certainly 
was audacious, if it Avas not false, if Mr. Peters did not deny it dur- 
ing the election, or if it was not known he had not authorized it; in 
other words, as long as the people thought it Avas genuine, does it not 
go to show, then, as far as the people were concerned, that Peters 
was behind this man; and does it not therefore have a tendency to 
show that mij votes he lost were due to that conspiracy he claims that 
Timilty entered into against him ? In other words, if that statement 
came out during the campaign, and if people believed it was Peters's 
statement, then Peters's friends did not cut him, for Peters was with 
him. 

Mr. Innes. Unless they believed the other statement, Mr. Chairman, 
was unti'ue. 

The Chairman. But, if he was not cut by Peters's friends, in resent- 
ment, the conclusion is that it was Timility's friends who cut him, and 
to prevent ]>is election Timilty entered into a conspiracy against him, 
and had his friends vote against him. 

Mr. Innes. Unless many of his friends did not believe it. 

The Chairman. Am I clear in the point I am stating? 

Mr. Innes. I think that is a fair conclusion. 

Mr. Oglesby- Do I understand the chairman to imply 

The Chairman. Do you see what I mean there, Mr. Tillman? 

Mr. Tillman. Yes; I see your point. 

Mr. Oglesby. Do I understand the chairman to imply that the 
senator's failure to support a Democratic nominee in any way tended 
to establish a conspiracy that was not shown by other evidence of 
value ? 

The Chairman. Oh, no; it is just as to the question of whether 
Timilty did cut Horgan. 

Mr. Innes. I think that argument is perfectly fair. 

The Chairman. You see my point? 

Mr. Innes. I think it is a perfectly fair conclusion to draw. But 
I was only offering it at this time, Mr. Chairman, for the purpose of 
emphasizing and bringing out the unreliability of the character of 
the brief. I do not think you ought to accept the sweeping state- 
ments unless you find them verified by the record. 

The Chairman. You are pointing this out as a prominent in- 
stance ? 

Mr. Innes. That is all I offer it for at the present time. 

The Chairman. I see. 



CONTESTED-ELECTION CASE HOEGAN VS. TINKHAM. 53 

Mr. Rogers. I notice on that green Morgan circular in the record 
the name of Senator Timilty appears as one of the advocates of Mr. 
Horgan. Is there any evidence in the record to show that the inchi- 
sion of his signature was authorized by him? 

Mr. Innes. I do not think there is any evidence anybody ever 
signed that circvdar. I do not mean to say they did not; they may 
have ail authorized it. I simply tried to find out Avho collected the 
names, and I asked the manager if he did. and he said " Xo." 

Mr. EoGERS. Timilty being one of those in the limelight. I was 
asking if his authorization had been made a matter of proof. 

Mr. Innes. I do not think they asked him, and I had not any idea 
of it when he was on the stand. I think he was one of the fiirst Avit- 
nesses, and I had never seen this circular at that time. 

Mr. Magee. Did not Timilty deny his signature was genuine ? 

Mr. Innes. I never asked him. 

Mr. Tillman. Was that circular sent out? 

Mr. Innes. Fifteen thousand were sent out and 7.000 were sup- 
pressed, they say. And may I say about that suppression the man 
who he says suppressed this circular Avas then the secretary of the 
city committee, not Timilty's secretai-y, and Avhy he did not send this 
out, if he did not send it out, Ave have no idea and do not knoAv. I 
ncA^er talked to him. Perhaps he did not get paid enough money : I 
do not knoAV. I do not knoAA- that he did not send it out. 

Mr. Oglesby. It is entirely consistent Avith the theory of con- 
spiracy if it existed? 

Mr. Innes. It is consistent, the same as almost anything is con- 
sistent with conspiracy, if there is any evidence to connect us AAith it, 
by Senator Horgan or anybody else. 

Mr. Magee. You say Senator Horgan announced his candidacy 
in July ? What was the position of Congressman Peters at that time 
as to running again? 

Mr. Innes. Congressman Peters had made no announcement. He 
had been talked to by several people and said he AA^as undecided 
what he Avas going to do, and he so remained until August, three 
weeks later. Avhen he published his statement he AAould retire. But 
everybody kncAA- he Avould not enter a contest in the primaries. 

Now, the third pcint — and I am going to speak of this as the last 
point. He speaks about Timilty having been eliminated by unani- 
mous vote as president of the Democratic city committee and that 
committee has done AA'hat it could to punish one Avrongdoer. There 
is not a particle of evidence furnished either that JNIr. Timilty AA'as 
eliminated or by a unanimous A^ote. Noav, I hold no brief for Sen- 
ator Timilty in this matter. He is not represented at all in this con- 
test any more than any other Democrat of prominence, but I simply 
state tiiat he belongs to the opposite faction from Brother Horgan. 
And Avhat the evidence does disclose is that Mr. Timilty Avas re- 
elected to the senate; after all these neAA'spapers charges he AA-as put 
at the head of the Democratic city committee — after all these ucaa's- 
paper charges and after this election. If you AA-ant to kriOAv the real 
facts, last year they had a new head, as they have every year, and 
Timilty said he did not care to go back. 

Mr. Prout. That is absolutely Avrong. 



54 COIsrTESTED-ELECTIOjSr CASE HOEGA:Nr VS. TINKHAM. 

Mr. In^^es. Let it rest. There is no evidence of it ; and, if I make 
a statement of it, I want to say it is mereh'- my statement and not in 
the record. 

Mr. Oglesby. Would not his action in deserting his own party and 
supporting a man of the opposite party be just as deserving, from a 
party standpoint, of punishment by removing him from a position 
of trust in the party — to have done it as a matter of friendship — as 
if it were done as the result of a corrupt bargain? In either event 
he was unworthj^ and ought to be replaced b^^ somebody whom the 
party could depend on. 

Mr. Innes. I would prefer not to answer that question, simpl}?- be- 
cause Mr. Timilty is not of my party, and I do not want it to get in 
the papers that I suggested I thought he had been with Tinkham or 
that he ought to be removed if he was. 

Mr. Oglesby. I mean from a party standpoint. All of us try to 
get votes from the opposite party, and nobodj'' for a minute would 
consider that such a conspiracy was the result of anything wrong. 
On the contrary, we would be inclined to contend that it showed good 
citizenship if a man were to leave his own party to vote for a man in 
the opposite party because he thought he would get somebody elected 
who would better represent the people. But I say, from the party's 
standpoint, desertion for any cause is considered party perfidy, is it 
not? 

Mr. Ix>'ES. I should prefer not to give you mj^ opinion, which does 
not seem to me is quite a part of the case. I w^ould be perfectly 
willing to give it to you personally. 

Mr. Ramseyer. Mr. Oglesby is simply getting at the abstract 
proposition. 

Mr. Oglesby. I want to find out Avhether or not this desertion 
might not be entirely consistent with what is legally permitted and 
still would warrant and require punishment by the party. 

Mr. Innes. Oh, absolutely. 

Mr. Oglesby. Because he occupied a position of trust in the party. 

Mr. In?vEs. I misunderstood your question. I thought you wanted 
to know whether he ought to be removed. 

The Chairman. What would be the legal effect? 

Mr. Innes. Of Timilty deserting ? 

The Chairman. Of Timilty turning over to the Republicans? 

Mr. Innes. I do not think it has any legal effect. 

The Chairma. I want to hear you on that. You heard what Mr. 
Prout said. 

Mr. Innes. I think Mr. Prout stated there is no punishment can 
be invoked, criminally or otherwise, except the party may see fit to 
exercise its discipline. I know of no other punishment. 

Mr. Oglesby. Except it is clone as a result of a corrupt bargain ? 

Mr. Innes. It would not be the result of a corrupt bargain unless 
it was clone as the result of an unlaAvful conspiracy. If that con- 
spiracy had as its end something lawful 

Mr. RiTSSELL. Do you concede that Mr. Peters deserted the Demo- 
cratic Congressman ? 

Mr. Innes. No. 

Mr. Russell. You do not concede he supported Mr. Tinkham? 

Mr. Innes. I do not. It is manifest that many of his followers 
did. Going into the realm of speculative politics, I have found that 



CONTESTED-ELECTION CASE HORGAN VS. TINKHAM. 55 

very often a man can stick to a part}' and let his friends go. I do not 
knoAV whether Tiniilty did that or not, but it very often happens, 
possibly Timilty did that. 

The Chair:man. I can understand Timilty doing that, and we all 
knoAv it has been done, that he would get his friends to defeat a party 
candidate, but would keep his own skirts clean, as far as he could, 
and vote the straight ticket himself, so that in the future he could 
always have the record of having been a perfectly regular party man, 
and could nev er be accused of having cut the ticket. 

Mr. Oglesby. I do not want to be put in the category of those 
who could understand that. Of course, politics in New Jersey are a 
little different from politics I have been used to; but I could not un- 
derstand that. 

Mr. RooERS. Do you consider it consistent Avith the Aveight of the 
evidence that Mr. Timilty simply kept his hands off? 

Mr. In>es. My own personal view is that Mr. Timilty did not do 
anything that he might have done to straighten out things for Mr. 
Horgan. And I think lots of other men in the Democratic Party did 
exactly that same thing. I think many of them thought they Avere 
Avithin their political rights in doing so. I am not clear they Avere 
not. I have seen enough elections 

Mr. Oglesby. You differentiate betAveen a man avIio is simply a 
party man, and the man who occupies a position of trust, as presi- 
dent, or secretary, or some other official position of the organization ? 

Mr. Innes. Oh, I think so. I think the other man has a right to go 
out on the street corners against any candidate he Avants to ; I think 
he has a perfect right to do that. 

Mr. Oglesby. But if the other man is honest, and can not support 
the ticket, he should resign any official position, should he not? 

Mr. Innes. Personally, I did once, Avhen I had a partner running 
for goA'ernor on the Democratic ticket ; I thought it the proper thing 
to do; not that I did not Avant to A^ote for him, but I did not Avant to 
be in a position of supporting the other man. I think that is the posi- 
tion to take. 

Mr. Ramseyer. It has been suggested at times Senator Horgan 
and Senator Timilty belong to different factions. Were there tAvo 
factions, and those tAvo men belonged to separate factions? 

Mr. In>;es. There is a line of demarcation in Boston politics Avhich 
you can almost ahvays tell. This croAvd is here, and that crowd is 
there. Once in a Avhile the}^ shift around. 

Mr. Ramseyer. You mean in the same party? 

Mr. Innes. In the same party. They used to have a line-up for 
local offices at one time. 

The Chairman. The tAvo factions? 

Mr. In:nes. The tAvo factions. 

The Chairman. And fight bitterly in the primaries? 

Mr. Innes. And fight bitterly in the primaries. 

The Chairman. The Timilty Democrats and the Horgan Demo- 
crats ? 

Mr. Innes. Yes. 

Mr. Rogers. Is there any evidence as to Avho Timilty supported 
in 1914? 

Mr. Innes. I do not knoAv, except Avhat the record sIioavs. The 
record shoAvs Horgan got about 4,400 votes, and Fay, who Avas in 



56 CONTESTED-ELECTIOl^T CASE HORGAN VS. TINKHAM. 

Mr. Timilty's ward, received 3,600, and AVatson, who is also from 
the same ward, received over 3,100. 

Mr. KoGERS. Are both Fay and Watson affiliated with Senator 
Timilty's organization ? 

Mr. Innes. They used to oppose it, but for the last two or three 
years have supported Timilty's organization. We are getting now 
into the realm of Democratic politics. I think Mr. Fay was an 
opponent of Timilty's for some years, and ran against him in the 
Senate, and also at one time was supported by him for the House. 
Then they had some trouble, and whether they came back together 
I do not know. But, at any rate, those three candidates ran at the 
time Mr. Horgan ran. 

I am only mentioning those three things to emphasize what I think 
you might consider unfair on our part. Then I believe our brief 
does not contain anything untrue and unjustified, as I know their 
brief does, and I think that has been reiterated in this brief here, 
which is filed in rebuttal. 

I want to come directly to two things said here, and that is the 
questions asked by Congressman Tillman; that is, about the liquor, 
the dispensation of liquor, and the corrupt use of money. Now, 
there is not any evidence that Tinkham even bought a single drink 
for any man during that campaign. 

The Chairman. Did any of his agents? 

Mr. Innes. There is not any evidence that any of his agents 
bought any liquor for any man during that campaign. 

Mr. Oglesbt. How did Horgan get licked? 

Mr. Innes. Eead his campaign textbook, Mr. Oglesby. 

The Chairman. It was stated that liquor was used? 

Mr. Innes. Mr. Chairman, that is absolutely denied. And Mr. 
Tinkham was asked that specific question, and I would like to tell 
you what he said. 

The Chairman. You need not quote it. 

Mr. Innes. He said, " I have no objection to going into a hotel 
barroom, but from the time I Avas nominated I never entered a place 
where liquor was sold, except a club." 

The Chairman. That is all right 

Mr. Innes. From the time I was nominated for that office. 

The Chairman. That is all right, so far as Mr. Tinkham was con- 
cerned ; but is it a notorious fact that liquor was used quite generally 
on that day, more so than on the other days ? 

Mr. Innes. Mr. Chairman, there is not a particle of evidence that 
liquor was used at any time during the entire campaign, except John 
Craven, Mr. Timilty's brother-in-law, they say took some kind of a 
drink at one of these hotels. But Mr. Timilty was a candidate for 
the senate himself at that time. They say he took three or four men 
there in an automobile; Mr. Timilty was running for the senate. 
He had a hard fight on with one of the Democrats, one of the prin- 
cipal witnesses in this case, to show the character of Mr. Timilty, 
who was running against him for the senate. He had his" own fight 
^n his hands. 

The Chairman. What is there to support the statement these 
small flasks of whisky being handed out? 

Mr. Innes. There was the statement made here, and it is in the 
brief of Brother Front, that small flasks of whiskv were given out. 



CONTESTED-ELECTIOISI" CASE HOEGAN VS. TINKHAM. 57 

I want to read the testimony in that case, and this man who testifies 
is the type of derelict of which many were summoned to testify. I 
want yon to listen to his testimony; and when I say he is a typical 
derelict and hanger-on, I am going to prove it by his own statement. 

The Chairiman. Is he the only man who testifies to these vials of 
liquor ? 

Mr. Iknes. He is the only man who testifies to anything 

The CHAiRisrAN. In the way of liquor? 

Mr. Innes. In the way of liquor. 

The Chairmax. Is there only the one witness, this man whose 
testimony you. are going to read? Is he the only witness who says 
anything throughout the whole record about the use of liquor? 

Mr. Innes. Absolutely the only man. 

The Chair^nian. And you are going to tell us what he did say? 

Mr. Innes. My Brother Horgan says that is not so. and I am 
going to say this to you, that there is lots of evidence here to this 
effect: ''Did you hear rumors that liquor was being disjiensed? '' 
" I did." '' Where did you hear that? '" ''Around the street corners." 

The Chairman. I see. 

Mr. Tnnes. There is lots of that sort of evidence, but nothing 
which would be considered in any court, nothing that is fastened to 
any particular person. 

The Chairman. Nobody except this man says they saw a man 
diinking liquor or a man handing out those flasks of liquor? 

Mr. Innes. There is not any evidence except it is testified a man 
named Lane bought a drink for two or three men. Senator Lane had 
been in the senate for two or three years and ran for Congress. 

The Chairman. How many men did he treat? 

Mr. Innes. He had three or four men. He w^as asked about this 
himself, and he said he stopped off there and met some men in the 
hotel bar, and he was asked how much it was, and he said '25 or 30 
cents, maybe 40 cents. That is all there was. 

The Chairman. There was not any taking in of a whole. crowd of 
voters 

Mr. Innes. Mr. Chairman, there is not a line of evidence 

The Chairman (continuing). And treating them at the bar? 

Mr. Innes. Nothing of that sort at all. Now, in the Keyes testi- 
monv — Keves is the man produced to show Tinkham's briberv — 
record 338^ 

The Chairjian. And you are on this li(|uor business? 

Mr, Innes. I am on the liquor question. 

Mr. Ramseyer. You are reading from your brief? 

Mr. Innes. From my brief, page 73; record, page 338. He was 
asked : 

Q. Well, with whom did you first .lijet into oomnuinioation in the campniii'n? — 
A. Well, somebody sent me down to Mr. Tinkhnnfs otHce, tellin.u' me that there 
was going to he u l)arrel of n\oney distriijuted, and I thought I would get a 
little bit of it, and I went down there, and I saw INIr. Tinkham. and he told 
me that he thought it wasn't hardly fair in a way; that he could not put out 
money directly nf»w, but to go down to Mr. Savage, over in the Globe Building, 
and he woidd give me the money. I went to Mr. Savage, and IMr. Savage told 
me they were all out of funds, and to go up — that he had siient all he had to 
spend. 

Mr. Savage was chairman of the twelfth ward committee. Later, 
after going to Mr. Savage, and being informed he had no money to 



58 CONTESTED-ELECTIOX CASE HOEGAN VS. TINKHAM. 

spend, he went then to a member of the legislature or a candidate for 
the legislature, named McGregor, and he said McGregor gave him 
some flasks of whisk}^ and told him, I think, he would give him three 
or four dollars, I think, for working election day at the polls. He 
then goes on to saj^ he intended to take McGregor's money and not to 
vote for him. I asked him that question, and he said, " Sure, the 
same as they take it from us all." He said that he received a card for 
use at the polls with a lot of names on it, which apparently was the 
whole Republican ticket. Record, page 340. Then he goes on : 

Q. Do you mean the whole ticket or the whole ballot of the Republican 
candidates? — A. The whole ballot, I presume. 

Q. You looked at the card?— A. I did. 

Q. Was the name of Gov. Walsh on the card or the name of Mr. McCall? — 
A. I can't say. 

Q. Was the name of Mr. Barry or Mr. Gushing on the Card? — A. I don't 
know, because I didn't take any more stock in it than I do in this whole shoot- 
ing match, because I didn't want to be brought into it. 

Q. Did you ask anybody to vote for anybody on that day? — A. I certainly did. 

Q. Who did you ask to vote? — A. I think Dr. Walsh was a candidate, 
wasn't he? ■ 

Q. Did you ask them to vote for Dr. Walsh? — A. Yes; and I would go again, 
and wear my toe nails off for him. 

Dr. Walsh was not a candidate that day, having been defeated in 
the primary election by Senator Leonard. Then Keyes finally says 
that Mr. McGregor and not the contestee employed him. 

A. I could not work other than I was employed by Mr. McGregor. That is 
the only one that employed me. 

This McGregor was a candidate for the legislature. Certainly 
that statement can not be laid up to us in any way, shape, or manner. 
Mr. Tinkham testified he did not even know Keyes, did not remem- 
ber his having come to the office, and never has met Mr. McGregor 
in his life. The following remarks are rather interesting and illu- 
minating, indicating the whole character of the man : 

Mr. Peotjt. Did Mr. Innes give you any money that day? 
The Witness. No, sir ; because he did not wait long enough for me to touch 
him. 

Mr. Ramseyer. The Mr. Innes referred to there. Is that the 
gentleman speaking now ? 

Mr. Innes. I was the gentleman referred to. On election day I 
went around in some of the precincts, and the testimony of this 
Keyes is that he saw me. and then Mr. Prout said, " Did Mr. Innes 
give you any money that day ? " And he said, " No, sir ; because he 
did not wait long enough for me to touch him." 

I merelj^ put that in to show the character of the witness. Now, 
we certainly can not be blamed for Keyes. Then, let us take the 
other case they mention, and that is the only case of liquor in this 
campaign, ancl yet it is characterized as the lavish use of liquor. 

The Chairman. He says there were half a dozen vials of whisky. 

Mr. Innes. That is the one given to him, he says, by McGregor. 

The Chairman. That is the one given to him by whom? 

Mr. Innes. By McGregor. He worked for McGregor, he said, to 
borrow tAvo dollars or two and a half. 

The Chairman. He said there were about two good drinks in 
them: they were of a brown nature — I suppose becaijse he did not 



CONTESTED-ELECTION CASE HOKGAN VS. TINKHAM. 59 

knov.- tlie specific nature of the drink — and there were half a dozen 
of those used. Xow, were tliere any more vials of whisky handed out, 
so far as this record is concerned," than those six vials"? That is 12 
drinks of whisky; there were six vials, and two drinks in each vial. 

Mr. Inkes. Yes, Mr. Chairman; there is no evidence that anybody 
in the entire district, that any candidate, State officer, or governor-^ 
they were all running that day — that liquor Avas handed out to any- 
body except this. 

Mr. Rogers. I notice the witness has his own standard of ethics, 
because he says on page 342 of the record, "I suppose I would tell 
you a lie, but not on the stand." 

Mr. Innes. I did not quote him, because he was simply the type 
of man I do not think anybddy ought to put on the witness stand to 
take awa}^ anj'body's reputation. 

Coming to the other specific charges, about briljery — that is a 
pretty strong Avord to use. Brother Prout mentioned three instances. 
The Keyes case was one. The second case was Purcell. Purcell sent 
out that postal card with Reynolds and signed it. Purcell testified 
that he received certain money \^hich Avent to the printer, and the 
printer was called and testified what he received to pay for those 
cards. Purcell directed a thousand of those cards himself, and 
Reynolds directed the other thousand, and there was left over, after 
the campaign, $-1: for directing that thousand cards, for the Avork 
he had done, and he kept it. 

The CHAiR:\rAx. How nuich did he keep for directing the cards? 

Mr. Innes. $4 for the Avhole work he had done. I think that is 
l)etty muckraking, to charge bribery against a man Avhose testi- 
numy is uncontradicted, Avitli a statement of that character. 

Then they speak about Mason, the negro, and Sheperd. Mason 
held rallies in Avard 18. 

The Chairman. Hoav much money did Mason get? 

Mr. Innes. One got $58 and the other $40. Mason got $58. 

The Chairman. What did Mason do for that; hoAv many rallies? 

Mr. Innes. The testimony shoAvs that. I am talking only from 
the record. The testimony shows that Mason held night rallies. 

The Chairman. Hoav many, about? 

Mr. Innes. He had an automobile, and presumably he Avent 
around and had various meetings in Avard 18 on tAvo nights. That 
is the only negro A^ote there is in the district. And that Avas re- 
ceipted for, and put on Mr. Tinkham's book, Avhich was produced 
here, in Avhich he had kept every dollar he spent — not alone that 
Avhich he returned but every dollar which his return said came under 
the United States law% and Avhich he appreciated this committee had 
a right to have, if it Avanted. 

The Chairman. Tell us Avhat he did for the $58, He had an 
automobile? 

Mr. Innes. He had rallies in the nighttmie. 

The Chairman. And he Avould go in the automobile from one 
place to the other? 

Mr. Innes, There may have been two; I do not know whether 
there Avas one automobile or tAvo. 

The Chairman, Hired automobiles? 

Mr. Innes. Hired automobiles, because he did not have one him- 
self; he was a negro. And they had rallies at street corners, and 



60 COISTTESTED-ELECTION" CASE HOEGAN VS. TIISTKHAM. 

had two or three speakers, and the}^ would get up and talk, and then 
go to some other place. I think they did that on two nights. 

The Chairman. That was done for two nights ? 

Mr. Innes. For two nights. 

The Chairman. And that $58 covered both automobiles? 

Mr. Innes. It covered everything that was spent. Now, the other 
charge, Sheperd, $18 for circulars; that circular is here in the 
evidence. 

Mr. Prout. Twenty-seven. 

Mr. Innes. Exhibit 27? 

Mr. Prout. Oh, no; $27. 

Mr. Innes. It was $27 for circulars sent out to those negro voters. 
It was a perfectly legitimate circular, nothing anybody could object 
to, did not mention Horgan's name; simply asked his Kepublican 
voters to come out and vote. That was sent out by him, and paid 
for, and kept track of. 

And the last charge, and the only definite statement throughout 
that Tinkham gave anybody a dollar, is that given a man named 
Dolan, the amount of $1. And I want you to read Dolan's testimony 
in the record. Dolan, gentlemen, is another one of those political 
hangers-on. Dolan had no business. Dolan was in Senator Hor- 
gan's office time and time again during the entire campaign, so he 
says in the record. 

The Chairman. Tell us about Sheperd, then we will come to the 
dollar to Dolan. 

Mr. Innes. To dollar — Dolan. 

The Chairman. You have explained the money to Mason and you 
have explained the money to those who sent out these cards — Pur- 
cell. How much monev was given to Sheperd — $27? 

Mr. Innes. $27. 

The Chairman. What did he do? 

Mr. Innes. Sheperd sent out circulars to Avard 18 to the colored 
voters. 

The Chairman. That is the " One way " circular ? 

Mr. Innes. No ; that is not the " One way " circular. 

The Chairman. How many were there, about? 

Mr. Innes. That is in doubt. They always claim they have more 
voters than they have. Mr. Tinkham said 750 to 800. I think that 
is a fair statement. 

The Chairman. And he paid for the 2-cent stamps? 

Mr. Innes. It may have been a 1-cent stamp ; he paid the amount 
for the stamps. ■ 

The Chairman. And that covered everything — the labor of ad- 
dressing and all? 

Mr. Innes. It covered the labor of addressing and everything else. 

The Chairman. How about the Dolan dollar? 

Mr. Innes. Now, the Dolan dollar man, as I say, was a political 
hanger-on. I do not think lie was a social friend of Mr. Horgan's 
in his office. He came to Mr. Tinkham because he had been told 
there was a barrel of money down there. This was his testimon3^ 
He says Mr. Tinkham gave him a dollar and asked him to vote for 
him ; he took the dollar and promised to vote for him. Then next 
week he went back again because he wanted another dollar. In 



CONTESTED-ELECTION CASE HOEGAN VS. TINKHAM. 6X 

the iiieantiine he had been to Brother Horgan's office, but he never 
asked him for money. lie says so, and Mr. Horgan says so, too> 
So he came down again and got another doHar. I asked him, '' What 
had you done to get that doUar^ '' and he said, "I thought I could 
get somebody else to vote for him."" I said, " Did you vote for him? " 
and he said, " No ; he did not vote for him."' Then I asked him if 
he intended to, and he said, " No ; he did not intend to." And I said, 
"And you did not intend to go and vote for him when you got the 
dollar." He said, " No; but he went about to get the other friend to 
vote for him." 

Now, that is the testimony of Dolan with this court convictions. 

Mr. Oglesby. Mr. Tinkham used bad judgment in buying his vote, 
didn't he? 

Mr. Innes. I want to say to you that Mr. Tinkham denied abso- 
lutely he gave him a dollar. 

Mr. Magee. Denied it? 

Mr. Innes. He denied absolutely he gave him a dollar. But I 
am going to read his testimony to you in just a minute — what Mr. 
Dolan said: 

Q. Are .v<»u now under probation from the city court? — A. Idle and dis- 
orderly. I think that was the charge. 

Q. AVhen was that?— A. December r,. 1913. 

Q. Have you any other record than drunks? — A. One. 

Q. What is the one? — A. Assault. 

Q. When was that?— A. That happened in 1907. 

Then I asked him what other record he had besides drtmks and 
assault, and then follows his other records. 

Now, the question of cons[)iracy is preposterous and is not to be 
believed, and ought not to be oifered before any tribunal, and I should 
hesitate to ask anybody to believe that statement against the state- 
ment of Mr. Tinkham which I am noAV going to read you. 

Mr. Magee. He testified above there that he did not vote for any- 
body for Congress, didn't he? 

Mr. Innes. That is right. That is one of the statements where they 
say we admitted we gave him a dollar. 

Mv. Prout. Which I later corrected. 

Mr. I^NES. You corrected that to-day for the first time. Then 
comes Mr. Tinkham's testimony. He says : 

He [meaning- Dolan i may have come to my ofiice. There were lunulreds, and 
I miiiht say tliousands, who came to my ofiice during the campaign. In rela- 
tion to these charges that T gave any money to anyone improperly, I want, how- 
ever, to make this sttement, that for years I have been inclined, if a man came 
to my otttce and the case was a worthy one, ond he wanted me to give him 
something — from 10 cents to .$5, which, of course, was the maximum — if the 
case seemed a worthy one I gave him the money. I also have given money to 
people on the street. I determined when I started in on this campaign that it 
was unsafe to do such a thing as that, and I even cut out private charity ; and 
although I had many men come to me and ask me for money I explained to 
them, although they' did not seem to accept the information very pleasantly, 
that it was absolutely impossible for me to give them any money, whether they 
lived in the district or not, because it might be misunderstood or used against 
me. And I must say that there were a number of cases where I would have 
given the man some money had it not been for the campaign. 

The CHAiRaiAN. Is that all of the evidence of money used? 

Mr. Innes. That is all of the evidence in any way. 

The Chairman. We have the liquor and all of the money? 



62 CONTESTED-ELECTIOX CASE HORGAN VS. TINKHAM. 

Mr. InjsEs. That is all of the direct charge of any money coming 
from any source except they have charged that Mr. Timility gave 
somebod}^ some money. 

Mr. Tillman. I see that Dolan, on page 307, says that Magoon told 
him he got $2 from Tinkham. 

Mr. Innes. Magoon was called by him. 

^Ir. Magee. What did he testify? 

Mr. Innes. He denied ever receiving any money. In fact, he said 
he did not see Mr. Tinkham until after the election, as I recall the 
testimony, and then went in to get a job — to ask a favor. He was 
one of the Eoxbury Crossing crowd around there looking for posi- 
tions, but he had not happened to see Mr. Tinkham. 

The Chairman. I do not want to direct the course of argument; 
but how about the law regarding campaign expenditures in Massa- 
chusetts ? 
, Mr. Innes I was coming to that last, because that is one 

The Chairman. That is one of the points relied upon — the con- 
spiracy with Timilty is relied upon; the use of liquor and money — ■ 
and we want to get your answer on all of these points. 

Mr. Innes. I think I have said all I want to say about that particu- 
lar matter. I do want to call your attention to his brief, in which he 
cites, on pages 14 and 29, a lot of witnesses whom he says will bear 
out his contention either that money was used or that liquor was dis- 
pensed. And I want to say to you, gentlemen, that the testimony 
in the record does not disclose that these witnesses ever testified. 

Mr. Oglesby. You can depend upon it we will look up those ref- 
erences. 

Mr. Innes. I want to show you a sample of the men spoken of 
here to-day as testifying to these most serious charges. William J. 
Kelley was spoken of as verifying the expenditure of money, the ex- 
penditure of money in barrooms. And this is a sample of what we 
have had to meet in this whole hearing, Mr. Chairman : 

Q. Did you hear anything about Mr. Logue spending any of Mr. Tinldiam's 
money in tlie form of cash or liquid ref reshmenst ? — A. I heard liquids were 
passed out freely at Cullivan's barroom. I heard it before and after the 
primaries, and it was pretty well known in the district that you could go 
down there, and if you were friendly with their political ideas, you could get 
fixed up in the way of liquor. 

Q; Are you acquainted with a young man named .Joe Aigen? — A. I know Mr. 
Aigen, 

Q. Is he employed in Cullivan's barroom? — A. As far as I know, he is 
tending bar there. 

Q. Did you hear that he was active in Tinkham's campaign? — A. I heard so. 

Q. And he was dispensing Tinkham's money? — A. I heard so. 

Q. And that he was giving out free liquor to people who were supposed to be 
With Tinkham? — A. That was the general impression. 

Q. Now, are you acquainted with a William J. Miller? — A. Why, yes; I 
know Mr. Miller. 

Q. And where was he employed at about the timei of election? — A. At 
Madden's barroom at Roxbury Crossing. 

Q. And that goes under the name of Yaeger's? — A. It has gone under the 
name of Yaeger's. 

Q. What capacity was he employed in there? — A. Waiter. 

Q. Did you hear that Mr. Miller was interested in Mr. Tinkham's campaign? — 
A. I heard that. 

Q. Tell us what you heard about that.— A. I heard that Mr. Miller was in- 
terested in Mr. Tinkham being elected, and that he would set up the drinks in 
case you spoke well of Mr. Tinkham. 

Q. That is. he was working generally in Mr. Tinkham's behalf? — A, Yes; as 
I understood it. 



CONTESTED-ELECTION CASE HOKGAX VS. TINKHAM. 63 

Then, on cross-exaniinntion, I asked : 

Q. Did you see ]\Ir. Tinkhani give anybody money? — -A. Wliy, no. 

Q. Did you see Mr. Tiniilty give anyltody any money? — A. No; I did not. 

Q. Did you see Mr. Kelley receive any money ? — A. No ; I did not. 

Q. Did you see Mr. Miller receive any money? — A. No; I did not. 

Q. Did you see anybody that you have testified about here receive any money 
from Mr. Tinkham, or from anybody else connected with the election? — A. 
No ; I did not. * 

That is Kelle}', the same Kelley, who circuhited these rumors 
which have been put out in our newspapers as evidence in this case, 
Mr. Chairman. We have had some head lines opening- up the politics 
of the day there. Then I go on : 

Q. Did Mr. Miller tell you he received any money from Mr. Tinkham? — A. I 
did not speak to Mr. Miller about it. 

Q. Did he tell you that he received any money from ^Mr. Tinkhani? — A. No; 
he did not. 

Then, further along in his testimony: 

Q. Is there anybody else that you can mention from the time you started 
of this campaign that told that they received money from INIr. Tinkham 
for being with him? — A. I just said before tliat you wouldn't get anybody 
to admit it, but the general rumor. 

Then comes the barroom story: 

Did you ever tell this barroom story? 

That is my question. 

The Chairman. That is the story of the Tremont House? 
Mr. Innes. No: this is the barroom dispensing liquor for Tink- 
ham : 

Q. Did you ever tell him about this barroom story? — A. I don't recall 
esi)ecially about the bai-room story. 

Q. Well, was that rumor sinu)ly something that somebody told you, or was 
it around the district generally?— A. All around the district. You couldn't 
help hearing it. 

Q. You heard it, and others? — A. Probably hundreds heard it. 

Q. I should think you would have gone down with the crowd. 

That is the barroom where this Avas being dispensed, and every- 
body knew about it. He said: 

A. I don't mix with the crowd. 

Q. But you heard the story a week before election that free liquor was 
being dispensed in Tiarrity's barroom, and that all you had to do was to go 
down there and get a drink if you were with Tinkham? — A. That was all. 

Q. I should think you would have gone down to see the crowd. — A. I tell 
you I don't drink. I don't go into barrooms. 

That is one of the witnesses who verifies the story of liquor, who 
was active in Mr. Horgan's campaign, one of the managers — not a 
manager, but a man who did some printing for him. His name 
is in his return. And then he quotes his own statements, he spent 
<:1ays— a day. I think, and a half— on the witness stand. And this 
is the kind of testimony : 

Have you got any knowledge that former Senator Lane spent money in 
the district? 

Only what I have heard ; I have no knowledge. 

What did you hear — 

And Brother Prout told the witnesses in this hearing, these 
rumors were competent evidence — that is in the record, too — and they 
took advantage of that situation and gave these rumors as testimony 



64 CONTESTED-ELECTION CASE HOKGAN VS. TINKHAM. 

to take away the reputation of men who were not there and who 
could not even testify, if they wanted to. 

Q. What did you hear? — A. That he was spending money profusely through- 
out the district. I saw him at Roxbury Crossing one morning at half past 8 
and I thought it was an unseemly hour for him to be at the crossing, and 
together with that I heard — I assumed that he was spending money. 

Mr. Lane denied that he been at the crossing at that time. 

Q. And did you hear that he was spending money from more than one 
source? — A. I don't know what you mean by that. 

Q. Was it one individual who told you that Senator Lane was spending 
money? — A. Oh, no; that was generally said. 

Q. Everybody knew that in ward 19? — A. It was generally said around. 

Q. And in what way did he spend the money? — A. He was in different bar- 
rooms buying drinks. 

Q. And did you hear of any particular barroom that he was in? — ^A. I 
heard that he was in the Highland Tap, and several others. I don't know. 

Q. Now, did you hear anything about Senator Tinkham spending any money 
in the district in different barrooms? — A. Well, no. 

Q. Or hotels, or other places? — A. Not before election. 

Q. Did you hear anything about Senator Tinkham being in Germania Hall 
on Sunday afternoon, November 1; that is, the Sunday before election? — ^A. I 
heard he was up there ; yes. 

Q. Did you hear whether or not he spent any money there? — A. Well, I 
heard he was up there, and that there was a lot of money spent. Whether 
he, Tinkham, spent it or not, I don't know. I understand he couldn't spend 
any money. 

Q. Did you hear that he was in the Forest Hills Hotel on Sunday afternoon 
and spending money"? — A. Yes. 

In all cases we took those rumors, and whenever we found it 
emanated from any man, we asked if he knew as a fact it was true, 
or if he had heard the rumor or made the statement. Mr. Tink- 
ham said he had not been in the Forest Hills Hotel during the entire 
campaign. You have heard that argued, that story about Timilty 
meeting him at Doyle's barroom or hotel. 

The Chairman. That is the Thursday before election? 

Mr. Innes. Some day before election. 

The Chairman. Thursday, wasn't it? 

Mr. Innes. It was, I believe. 

The Chairman. You were supposed to meet a man in there and 
he said you came in on Thursday, before election, and bought a 
drink. 

Mr. Innes. No ; he did not say I bought a drink. I went in the 
toilet, I think it was. 

The Chairman. And told him the bartender would tell him who 
to vote for. Is that the one ? 

Mr. Innes. No ; that is not the one. It is the one he manufactures 
to try to bring out some sort of conspiracy, but there is no evi- 
dence here that Tinkham and Timilty ever even talked together, 
or anybody talked to Timilty about Tinkham's campaign, or Tim- 
ilty ever talked to anybody about supporting Tinkham. There is 
not a particle of evidence on that subject. 

Mr. Magee. Was not Senator Timilty running for the senate at 
this time? 

Mr. Innes. That same day. 

Mr. Magee. Was he elected ? 

Mr. Innes. He was elected that year and the year after. 

Mr. Magee. Is he a senator now? 



CONTESTED-ELECTION CASE HOBGAN VS. TINKHAM. 65 

Mr. IxNES. He is a senator now, I think serving his sixth term. 
I Avoiild not mention this, but Brother Front's argument is some- 
Avhat personal to me. Brother Front said there is evidence here 
of my meeting Senator Timilty in Senator Doyle's barroom or 
hotel, and that I said— I met him in the hall, l' think, and went 
upstairs with him. 

The CiiAiR^rAx. That is. they met n man who was a waiter? 

Mr. Inxes. p]xactly. 

The CiiAiHMAN. They had some (h-inks. and he tohl them the 
story ( 

Mr. Innes. Exactly, Mr. Chairman; you remember it. 

Now, what is the evidence they have on that point? Why, from 
a man named Lally. Who is he? Lally worked in the contest- 
ant's office before election. 

Mr. Tillman. What page? 

Mr. Innes. Page 48 of my brief, if I may so refer you. This man 
Lally Avorked for Hoi-gan during the campaign. He was one of the 
most active partisans during the campaign. He was the author of 
and sent out a circular; he did detective work during the campaign 
and after. He was produced as the official stenographer to take these 
notes here, which Avere to be transmitted to Washington, but we 
could not agree on his ability to transcribe these notes, or his fair- 
ness. He served legal papers for the contestant in this case. He 
Avas the man Avho Avas ahvays present, and AvheneA'er you read this 
testimony of any of those general rumors, most of these stories Avhich 
Avei'e contradicted by the men themselves Avere told by Lally. He 
Avas omnipresent and ubiquitous and always ready to fill up any 
chinks. He Avas the man selected — I do not Avant to say " selected," 
l)ut he did go to this hotel. He said he met a man and " put a few 
drinks into him "" to make him talkative, and the felloAv said he had 
seen Mr. Innes in there, Charlie Innes or Mr. Innes, AvhateA'er he 
called me, and Senator Timilty there. 

Mr. Ramseveij. He did not say that himself? 

Mr. Innes. He did not say he did at all; he said he had gone there 
and got this evidence of this man, in this place, who told him those 
facts. 

The Chairman. And that the bartender would tell him for Avhom 
to vote ; is that the story ? 

Mr. Innes. That is the story,- Mr. Chairman. 

The Chairman. And the bartender told him to vote for Tinkham? 
I think that is the story, as I recall it. 

Mr. Innes. That is the story. Noav, he did not get the name of 
that man that he says gave him this evidence, and if he did, he did 
not get his address. He was neA-er produced at the trial. The man 
Avho talked to Lally, Avho talked about the gentleman here, he said 
he Avas a spare Avaiter. His address is 333 Tremont Street. He had 
not tried to locate him, hoAvever, from the time in December when 
he found this most important evidence, so he thought, of the meet- 
ing between ]Mr. Timilty and myself. I have been known from boy- 
hood days as a friend of Mr. Tinkham's. He is not, as Brother Hor- 
gan suggests he is, my rich tool. I have knoAvn George Tinkham for 
a good many years, and Avas ahvays glad to support him. 

Mr. Tillman. Is he a Avealthy man? 

40880—1(5 ~^ 



66 COlSTTESTED-ELECTIOlsr CASE HOEGAN VS. TIl^KHAM. 

Mr. Innes. His mother and father and aunts are rich. I do not 
think he is rich, himself. I have met his mother and two aunts, his 
maiden aunts; they are rich, but he is not a man of large means, 
himself. 

I do not suppose Brother Horgan can understand another man's 
keen interest in somebody else's campaign. I have taken an interest 
in Senator Tinkham's campaign for a great many years. I take the 
same interest now, and have for a good many years. I was not on 
the committee ; my name does not appear in this entire rigid investi- 
gation which was conducted. But I did everything I could for him, 
however. Now, Mr. Tinkham denies having a meeting there with 
Timilty. Mr. Timilty denies it in a most positive way, before any- 
body ever knew the charge was to be made. He was called to the 
stand as one of the first witnesses. He was asked this: 

Q. * * * Tell us why on Thursday, October 29, at some time around noon, 
you were closeted in the toilet room of the New Tremont House with Senator 
Innes? — A. Where? 

Q. Why was it on October 29, Thursday, about noon, at the New Tremont 
Hotel, .Jim Doyle's barroom (that is Senator Doyle), that you met Senator 
Innes by appointment there, and went to a private room there? — A. Do you 
really mean that question? 

Q. Positively. — A. I never met Mr. Innes any place in my life, in any hotel 
or any place, and wherever you get that information 

Q. That is all. You deny, then, that you did meet him? — A. Most emphati- 
cally. 

Q. You never met Senator Innes at the NeAV Tremont House prior to elec- 
tion? — A. Never met him at Jim Doyle's hotel in my life. 

Q. Did you meet anybody at Jim Doyle's hotel just prior to election? — ^A. 
None, whatsoever. 

Q. Were you in Jim Doyle's hotel just before election? — A. Not for a year 
and a half. 

Q. You did not meet Peter Murray in Jim Doyle's hotel prior to November 
1? — A. Never met Peter Murray in any hotel. 

And so on, about the tricks and the other things, about which we 
had no idea as to what it was all about, and we sat there in amaze- 
ment when these questions were asked.^ 

Now, what do you think of any evidence that anybody met Mr. 
Timilty in Mr. Doyle's hotel. Is that statement a fact ? I won't go 
further to suggest to you the character of Lally, except what this 
record shows. 

The Chairman. Mr. Innes, what other evidence is there besides 
Lally's statement that a man told him, to establish this fact? Is 
there any? 

Mr. Innes. None whatever. 

The Chairman. Is it corroborated by any circumstances? 

Mr. Innes. No circumstances whatever. And Lally went a little 
further. This is where he went a little too far, and I am talking 
from the record. The record discloses he said he met a detective 
named Erickson, and received instructions to go to Jim Doyle's place 
out in Eoxbury, and told him to see a certain witness and tell him not 
to talk about this case. This man named Erickson was a detective, 
and he had been told to find him. And I said to him. How did you 
happen to know Erickson, and he said they had worked together at 
one time. Then I asked him if he had tried to find Erickson, and he 
said, " Yes, I have looked all over town, and can not find him." This 
testimony was offered to prove that word had been sent to these peo- 
ple to keep away from the hearing. I looked up the records in Bos- 



CONTESTED-ELECTION CASE HORGAN VS. TINKHAM. 67 

ton. and foiiiul a man named Erickson who lived where Lally said he 
lived, in South Boston, and we brought Erickson down to the court, 
and Erickson said he had worked on a case with Lally some time 
before, on some detective business for some corporation, but Mr. 
Erickson said he had not seen Lally for a year and a half. Then 
Mr. Lally said he guessed that was not the Erickson he meant. 

The Chairman. I see that in the brief. What is the point you 
make of that? 

Mr. Innes. It is the worst case of manufactured testimony. 

The Chairman. How manufactured? 

Mr. Innes. I am not blaming either Mr. Horgan or Mr. Prout for 
this, because they were surrounded in this case by men who were 
overzealons. or crooked: I do not know what; and they believed the 
silly rumors that are brought to your office every time a man rims 
for office, but you pass them up. I do not blame them. But I say 
Lally, in that statement, proved absolutely unreliable, and I believe 
it proves absolute perjury and framing up of testimony in this case. 

Mr. Oglesby. They repeat in there a very serious charge against 
you, which they say was printed in one of the newspapers in Boston. 

Mr. Innes. I did not think the charge was very serious. 

Mr. Oglesby. Page 16. 

Mr. Innes. Page 16 of the record, or their brief? 

Mr. Oglesby. Of their brief. 

Mr. Innes. Yes. Of course, this statement was written in a Pro- 
gressive paper of our town, by a very clever newspaper man, who 
likes to take a fall out of most any party, either party who hap- 
pens to come his way, and this was written in an interesting and read- 
able w^ay, for the ordinary public. Of course, the information there, 
Mr. Chairman, was furnished by some close friend of Mr. Horgan's. 
It gives the amount of money spent for affidavits, and alleges votes 
were bought at five per. We did not give the information, did we? 
Who did give it ? What is it based upon ? The reporter was never 
called, whoever he was. I asked Mr. Horgan why they never called 
the reporter to testify to it. It was put out after the election. That 
is the sort of newspaper stuff we have had in his campaign. Twenty- 
six affidavits that votes were paid for at $5 per vote. And then 
Brother Horgan suggests in his brief that somebody ought to sue 
those people for libel. I have tried to bring suits for libel, myself, 
sometimes. You have got to prove it was spoken about some definite 
person. 

The Chairman. So did Barnes. 

Mr. Innes. Nobody wants to walk up to a court and say, " I am 
the fellow ; this charge is about me; it is not true." There is a charge 
made about nobody here; simply a newspaper story and incidental 
to that 

The Chairman. Did you ever find out who gave the information 
for this story? 

Mr. Innes. I assume it must have been some of Mr. Horgan's 
intimate friends. 

The Chairman. Or a clever newspaper man. 

Mr. Innes. I assume it must have been some of Mr. Horgan's 
intimate friends. 

Mr. Oglesby. You do not have to give the newspaper boys any 
information for a story. 



68 CONTESTED-ELECTIOlSr CASE HORGAN VS. TINKHAM. 

Mr. Innes. And then I have published the editorial in a paper, 
the same paper, and I have stated there that it is not part of this 
record, because it came out after this case was closed. But I put it 
m, although it is not a part of the record (but I have told you about 
that) in which this same paper ridiculed all the evidence here as 
Jacking in positiveness and character. 

Now, I do want to say a word or two to you about Mr. Horgan's con- 
clusions that he has drawn, that there was a conspiracy or anything 
crooked back of it. He reasons as perhaps he ought to reason there 
were Democrats who did not vote for him, and he seems to think that 
is evidence of crookedness. What are we going to say about William 
Monroe Trotter, the colored gentleman who ATas put out of Presi- 
dent Wilson's office a few months ago? Horgan says Trotter first 
informed him of what Timilty was doing ; and he claims he received 
either $10 or $20 from Horgan for advertising, or something of that 
sort. And Mr. William Monroe Trotter is a colored man. Of 
course, the money did not influence him any. Of course, he has been 
a leading exponent of his race — at least, the papers state that he 
represented them here, and the President objected to his presence 
in his office, and asked him to retire. That is all the record shows, 
hoAvever. It is quoted in the record. Of course, he voted for Mr. 
Horgan from purely reasons of personal friendship. I do not say 
he had any other reasons, but T wish Brother Horgan would give us 
the benefit of that same viewpoint. 

I want to say one word about the postal cards, because it has been 
mentioned these postal cards were sent out, and it is all in the record, 
b}^ these two men. It was their own idea, the signing of them, and 
the sending of them to men in the district. They thought of the 
idea. The}^ were good Democrats and wanted to have Mr. Tinkham 
elected to Congress. Brother Prout says they had no reason. This 
lecord shows one of them was the barber who shaved Tinkham at the 
Athletic Club. Brother Horgan sneered at it. I do not know what 
your experience has been, but I have sometimes found a barber most 
helpful, and I would rather have a barber for me than the average 
banker, because he will do more for you, maybe because he has more 
time, and so Travers asked him, and he said he would be glad to do it. 
He had not any interest in politics particularly. 

Mr. Russell. I believe your statement of yesterday was that the 
contestee indorsed the postal card, and agreed on the form? 

Mr. Innes. He did. Purcell brought it to him, he said, and Mr. 
Tinkham indorsed it, and paid for it. Now, that postal card — there 
is nothing on it that you can object to, unless you object to the pre- 
diction. The prediction was " Vote for Walsh, Democrat, and Tink- 
ham, as hundreds of other Democrats are going to do." 

The Chairman. That was more than a prediction; it was a sug- 
gestion, a solicitation. 

Mr. Innes. It also says, " as hundreds of other Democrats will do." 
We think they did. We think a good many Democrats voted the 
same way, for Gov. Walsh and Tinkham. 

Now, I want to speak, Mr. Tillman, because it occurred in your 
district, on the Slemon's case. In this case it was claimed, and it was 
a fact, that the candidacy of a well-known Republican was an- 
nounced who was not a candidate at all. Whether you had the 
Australian ballot system at that time I do not know. But you did 



CONTESTED-ELECTION CASE HORGAN VS. TINKHAM. 69 

not have a list of names to vote for and you were handed a ballot, and 
you would find posted up all over the walls a prominent Republican 
who was said to be running- who was not a candidate at all. Of 
course, it was an eminently unfair thing to do. I do not know 
whether it changed the election, but it was unfair as between two 
honorable men contesting for election; an unfair thing to do; to 
divert votes from one i)artv by claiming somebody was running who 
was not running at all. Nothing of that sort Wiis done here. 

And you have a case in your records, which came from our own 
State, where we had a forged telegram as coming from the Demo- 
cratic chairman of the national committee urging the candidacy of 
one of two prominent Democrats to Congress, and the chairnu\n of 
your national Democratic committee, who was said to have sent the 
telegram which was published throughout the district, said, as a 
matter of fact, it was a forgery, and the committee found it was a 
forgery. It was said to be a trick, but they coidd not say that any 
votes had been influenced necessarily by it. although they paid some 
tribute to the ability and standing of the gentleman who had signed 
the telegram. But you said there was no evidence that any votes 
had been changed by it. We say that this postal card is a legitimate 
thing to do; we submit that it is a perfectly fair thing to do. We 
submit that our methods are legal — of course, we would say that — 
and we were A^ithin our moral rights, and Mr. Tinkham, I think, has 
a right to say. " I stand for that," and I think it is a perfectly legiti- 
mate method of conducting a campaign. 

There has been a lot of talk, and Brother Prout has particularly 
criticized us for the little time we have taken in our brief about the 
circular called the "One way game expose." There is no doubt about 
the fact that it was a correct statement of Mr. Hogan^s record. 
There is no claim there is any deceit in the cii'cular offered. I have 
doubt that even a trained legal mind would know exactly why that 
"One way" circular came into the brief. It w\as brought into the 
brief because he says they want to show Timilty's connection with 
the circular and, therefore, with Tinkham. I w^on't discuss all the 
other phases of it — whether all the signatures are genuine or not — 
but I want simply to say this, that even if everything he claims 
about it is true, even if the signatures did come from some of 
Timilty's clubs, it merely shows some men in Timilty's club were 
friendly to Tinkham's candidacy. There is not the remotest con- 
nection of Timilty with it. except the fact that some members of his 
club signed it, knowing Mr. Tinkham. And it has been said here in 
this connection that he has changed his testimony, or we have 
changed our case, and Brother Prout, in his last brief, has said that 
we framed up this whole case and changed our policy afterwards. I 
do not know, but I can not see on what any such suggestion or 
slanderous remark as that is based. There is nothing changed 
about the testimony. The facts are clear enough. Senator Xichols 
drew up that circular; drew it up without asking Tinkham about it. 
Mr. Tinkham went around in an automobile — around speaking- 
nights and at noon — speaking to the factories at noontime and to the 
factories at 5 o'clock, and speaking at night in rallies, mostly out on 
the streets, because he was conducting his own personal campaign — 
because he was looking for Democratic votes. 



70 CONTESTED-ELECTION CASE HOKGAN VS. TINKHAM. 

Mr. Nichols got that circuhir up. It was charged to Tinkham at 
a printing establishment that did all of his work, and he paid for it 
without any attempt to conceal it. Mr. Xichols wanted some names 
on that circidar, and he wanted, naturally, very properly, if it could 
be done, Democratic names. He got two himself, all he'had to have. 
He only had to have one by law, but he got two himself. And in the 
hurry of the time the circular was sent out on Thursday or Friday, 1 
believe, befoi-e ejection. He wanted to send it out in time in order 
to be refuted if any statements in it were incorrect. In getting 
those signatures different people started to go to get them, and he 
says the signatures came in. He only verified two, because he only 
had to have one. And he added the names of those other people, 
half a dozen or more, and sent it out. And the evidence all disclosed 
that he sent it down to the printer and the printer sent it out, acting 
absolutely in good faith about it, with no attempt made to do any- 
thing that Avas improper. And Mr. Tinkham, Avhen he heard of it, 
said, " That is all right ; that is satisfactory to me, if you know that 
record is correct." That is the testimony of the record. And he 
approved it, and said, " I will stand back of everything you said if 
you know it is correct." 

Now, I am going to close 

Mr. Eamseyer. Who is this man Nichols? 

Mr. IjStnes. Nichols is a State senator. 

Mr. Eamseyer. A Republican? 

Mr. Inxes. a Republican; yes. 

Mr. Ramseyee. Manager of Mr. Tinkham's campaign? 

Mr. Innes. He was not on Mr. Tinkham's campaign committee, 
but he was a close friend of his, the political editor of the Boston 
Post — not the editor — but he had been the editor at one time. He is 
not now. He had done more or less work along these circular-pre- 
paring lines. 

Mr. Ro<}ERS. This may not be any too pertinent to either side, but 
it has been discussed somewhat, and I have been rather interested in 
the suggestion that there were no rules of evidence observed in the 
proceedings which formed the basis of this record. 

Mr. In]sjes. Absolutely none, Mr. Congressman. 

Mr. Rogers. And that a ver}^ large proportion of the evidence 
there is admissible on no possible theory of law, I take it ? 

Mr. Innes. I think it is unquestionably true. I want to say I do 
not believe — and I leave the question to the members of the com- 
mittee who are lawyers — I do not believe one-quarter of that testi- 
mony would be allowed in any court whatever. And the character 
of what I have given jon was the character of testimony that has 
been offered. 

Mr. Ramseyer. Did 3'ou aim to take exceptions to such testimony 
as you thought illegal? 

Mr. Innes. I entered objections, but the magistrate took this view 
of his jurisdiction, that he was there simply to get wdiat was said and 
to certify it to you here at Washington, without any attempt to ex- 
clude any evidence whatever. 

Mr. Rogers. Do you know in any past contests whether the mag- 
istrate has taken that same view or has attempted to limit the 
evidence ? 



CONTESTED-ELECTION CASE HOEOAX VS. TTNKHAM. 71 

Mr. Innes. I have only had one other contest, and the magistrate at 
that time took the same viewpoint, and I think his viewpoint is 
correct. Personally. I think the entire procedure onght to l)e i-e- 
vised. I think it is an unfortunate situation. 

Mr. EoGEiJS. That is my experience from a service of three or four 
years on this connnittee and I have come to that same conclusion. 

Mr. Innes, I do not want to suggest what this committee should 
do, hnt I do believe it would be a good thing if yon would pass a 
definite statute putting the matter in the hands of the court to take the 
evidence for this body. 

Mr. Tillman. Yon concede there are no rules governing the ad- 
missibility of evidence? 

Mr. Innes. Exactl.y. And the record is full of political linen 
which was washed out there, which it was thought advisable to wash 
out. 

Now, I want to say a Avord about the expenditures, whether we 
have expended more money than the law allowed us. I am coming 
now directly to what he calls the expenses of an illegal nature. 

The Chairman. That is what I Avant to* ask you, to tell us about 
the Massachusetts law with relation to congressional requirements. 

Mr. Innes. The Massachusetts law has been correctly (pioted by 
Brother Front, to the elfect that it allows $;^,000 expenditures in elec- 
tions and $1,500 in the primaries, and then it says: 

Provided, howwcr. Tluit caiulidates for iiomiuatiou or election to the Senate 
or House of Ileiu'eseutatives of the United States shaU be subject to the laws 
of the United States in so far as this act may conflict with such laws. 

The United States statute provides that no candidate for Con- 
gress shall pay an amount in excess of that allowed under the laws 
of the State, provided — 

That money expended by any such candidate to meet and discharge any 
assessment fees or charge made or levied upon candidates by the laws of the 
State in which he resides, or for his necessary personal expenses incurred for 
himself alone, for travel and subsistence, stationary and postage, writing or 
printing (other than in newspapers) and distributing letters, circulars, and 
posters, and for telegraph and telephone service shall not be regarded as an 
expenditure within the meaning of this section, and shall not be considered any 
part of the sum herein fixed as the limit of expense, and need not be shown in 
the statements required to be filed. 

Now, there was a definite provision in the State law which gov- 
erned, and which I have called to your attention, that the personal 
expenses should not be considered in determining this question under 
the State laws. We also have our own State law. saying here that if 
this act was in conflict with any United States statute that the na- 
tional law should govern. And that, I think. Mr. Chairman, is a 
doubtful proposition of law. It was so doubtful that before entering 
the campaign (this is all in the record, and I am not quoting to yon 
except from the record) the contestee consulted personally various 
men who would most likely know about what the law tried to do. 
He consulted the man who "framed the act, Maj. John H. Sherburne, 
of the Massachusetts Legislature, and his testimony is given in the 
case. Maj. Sherburne aclvised him that personal expenditures could 
be made in Massachusetts and need not be returnee!. He consulted 
the attorney general. James M. Swift, one of his present attorneys, 



72 CONTESTED-ELECTION CASE HOEGAN VS. TINKHAM. 

and who has been for some time attorney general of the Common- 
wealth, charged with the dut}^ of enforcing the corrupt-practices act, 
and he was so advised by him. The deputy secretary of state, to 
whom the return was made, never claimed that there had been an ex- 
penditure bevond the amount allowed by law ; he merely claimed that 
the State law should have been complied with, and that a return of 
those expenditures should have been made. His one contention was, 
" You should have complied by making a return." 

The CHAimrAN. His contention was that your personal expendi- 
tures were not included in the $3,000 

Mr. Innes. Exactly. 

The Chairmak. But you could not ignore them, and must tell 
what thej were? 

Mr. Innes. Exactly; that they shoidd have been returned. 

The ChaikmajV. What do you think about that? 

Mr. Innes. I think you are right about it. I think he has a right 
to make the expenditures, but I think whether he had to return them, 
now that the question is raised, was a very close one. It was not 
raised, of course, mitil after this thing was done; but to cover any 
possible question, it AYas all kept by Mr. Tinkham in his book and in ■ 
his check book, so that every dollar has been shown to this committee. 

The Chairman. Can he make a supplemental report? 

Mr. Innes. He can, under our law. 

The Chairman. And did he do that? 

Mr. Innes. He was asked to by Mr. Boynton, assistant secretary 
of state, who is not a lawyer. He saj^s Mr. Tinkham did not do it. 
And the State had a Mr. Boynton, a Democrat, attorney general at 
that time, and he took the same viewpoint as Mr. Swift. 

Mr. Prout. That is not so. 

Mr. Innes. To be absolutely exact, Mr. Bo.ynton has never made 
any further request or proceeded in any way. That is in the record- — 
he has never made any further request. And that is equally true of 
the last attorney general, Mr. Atwill. 

The Chairman. Is it the duty of the attorney general to make re- 
quest for this supplemental report, or must any candidate make it of 
his own direction ? Do you see the point ? 

Mr. Innes. I see. It is the custom there, or the law provides, that 
the secretary of state, which means the deputy, shall call attention to 
the incorrectness of any return, which may then be remedied. 

The Chairman. Was that clone? 

Mr. Innes. That was clone in a number of other cases. Then Mr. 
Tinkham says, " I do not think I am supposed to make a return, be- 
cause my statement sets out " 

The Chairman. Pardon me, before we get to that. He called at- 
tention to what was deficient in the return, in that he had not 
specified 

Mr. Innes. Specified the amounts. 

The Chairman (continuing). Of those personal expenses? 

Mr. Innes. Of his personal expenses. 

The Chairman. What did Tinkham do after that? 

Mr. Innes. Mr. Tinkham said, " In the statement I have given 
vou, the return discloses the reasons for not filing them." 

The Chairman. " So that I think I will stand on that? " 



CONTESTED-ELECTION CASE HOKGAN VS. TINKHAM, 73 

Mr. I^■^•I•:s. '^\iid I think I will stand on that." That, then. Avas 
referred to the attorney general for snch proceeding as he saw fit to 
take. 

The CHAiiiaiAN. Did he take anj^? 

Mr. Innes. What was usually done, which was to send — because 
many people slipped up on this — to send it back to have it corrected. 
Nothing has been done from that time to this. 

The CiiAii^MAN. Your contention is the fact that the attorney gen- 
eral took no action, as he usually would if if there had been anything 
wrong 

Mr. Inm:s. Exactly. 

The C'liAiijMAN (continuing). Is a presumption or a proof positive 
that the thing must be all rights 

Mr. Innes. That is all the record disclosed, what you say, and I am 
iU'guing from the record. 

Mr. EoGERs. Is this a penal statute? 

Mr. Innes. It is a penal statute. 

Mr. Rogers. And any violation of it then is punishable by fine and 
imprisonment '( 

Mr. Innes. Bv fine and imprisonment. But Ave have good 
laith— 

The Chairman. Tell us about the good faith. 

Mr. Innes. Yes. The good faith is shown first by the care with 
which Mr. Tinkham went at this, to see Avhat he could and could not 
do; and, secondly, he kept the l)ooks, a most punctilious account in 
liis books. 

Mr. Ramseyer. Is that set out in the record ? 

Mr. Innes. That is set out in the record. 

Mr. Ramseyer. Every cent, personal, and everything? 

Mr. Innes. Everything is set out in the record, and that he asked 
the opinion of the attorney general and Mr. Boynton. 

The Chair:\[an. I can see that, all right, but is it your construction 
of the statute that even if a man has filed a defective return and does 
not cure it, nevertheless the return is all right, provided he acted in 
good faith? 

Mr. Innes. Plxactly. 

The Chairiman. Show us the statute or tell us about that. 

Mr. Innes. The statute provides 

The Chairman. Without expressing any opinion of the thing at 
jJl, suppose the committee should come to the conclusion that this 
return made by Mr. Tinkham Avas not correct, and that he should 
haA'e filed a supplemental return, and, to that extent, it is deficient: 
If Ave get that far, is it your contention that he is absolved from it by 
the fact that he showed good faith? 

Mr. Innes. Absolutely. 

The Chairman. ShoAv us that. 

Mr. Innes. I also say even if you find his return should have been 
filed, irrespective of the suggestion or of the express statement about 
good faith, that it Avould have been entirely Avithin the province of 
tliis committee, if they thought there Avas good faith, to alloAv riim 
to retain his seat. 

The Chairman. Of course, I understand that, but you go stronger 
than that, vour Massachusetts law. 



74 CONTESTED-ELECTION CASE HOEGAN VS. TINKHAM. 

Mr, Innes. Of course, our court has recentl}'- held the entire cor- 
rupt-practices act is unconstitutional. 

The Chairman, Yes ; I understand they have held it is not within 
the province of a State legislature to bind national or congressional 
candidates. 

Mr. Innes. Exactly, • 

Mr. Ramseter. Have you the decision? 

Mr. Innes. I have been too busy 

Mr. Russell. Is that the supreme court of your State ? 

Mr. Innes. The supreme court of our State. They have prac- 
tically said you can be the judge of your own returns and the legis- 
lature can not pass any law binding any successor. 

Mr. Prout. Is that the Swig case? 

Mr. Innes. Yes. 

Mr. Prout. That has nothing to do with the congressional elec- 
tions. 

Mr. Rogers. I do not think that Swig case has any bearing upon 
the question before us. 

Mr. Innes. I did not cite it, because I wanted to have this case 
decided upon its merits, but that case did hold that the court had no 
right to investigate into the matter, or make any report, which was 
a legislative function, and went further to say it was the function 
of each legislature to pass upon themselves. I was about to quote 
the statute, which is chapter 783 of the act of 1914 of our laws. 

The Chairman. What page? 

Mr. Innes. It is chapter 783 of the act of 1914, section 10. 

The Chairman. Have you got it in your brief ? 

Mr. Innes. Yes; it is in my brief. 

The Chairman. On what page? 

Mr. Innes. On page 86 of the brief. It says that it shall be a de- 
fense to any of these objections that such violation was not com- 
mitted by the candidate, or any person of his knowledge and in his 
behalf, and was committed contrary to his orders and without the 
sanction or connivance of the candidate. 

Mr. Ramseter. Is that statute law, or a court decision ? 

Mr. Innes. That is statute law; that is this statute. The second 
ground of defense is that the participation, if any, of the candidate 
in such violation, arose from inadvertence, or from accidental mis- 
calculation, or from some other reasonable cause of a like nature, 
and in any case did not arise from any want of good faith. There 
are other provisions, six or seven in number, which take the viola- 
tion out of the punishing clause, either by way of removal or by way 
of criminal prosecution. 

Now, I think we have shown throughout this, very conclusively, 
that we have complied with the law as we see it. I want also to sug- 
gest to this committee that this has been a fairly searching examina- 
tion for this contestee. He was summoned to the witness stand and 
he was asked to produce every check book and every memorandum 
book and every bank book having any relation to his bank accounts 
or personal expenditures. He was submitted, as I say, to a full ex- 
amination as to all of those matters. Nothing was disclosed of any 
sort, nature, or description which would indicate there had been a 
dollar spent that was not down on that book of his, which he kept. 
I do not think that will be denied. 



CONTESTED-ELECTTOl^ CASE HORGAX VS. TINKHAM. 7 i) 

Somebody asked here what money was spent. There was not a 
dollar spent except the $4,200 which is here mentioned and which is 
before yoii gentlemen. The secretary of state, Mr. Boynton, whom 
we have discussed here, said in the course of his examination that 
the corrupt practices act had not been interpreted yet and, as he 
said, it is very obscure in many of its details, last year being the 
first year, and it is a difficult problem to carry it out. So we did the 
best we could. 

The Chairman. When was this law passed? 

Mr. Innes. The very vear this election took place. 

The Chaikman. In 1914? 

Mr. Innes. In 1914; yes. 

The Chairman. The legislature closed when? 

Mr. Innes. It closed probably in July, and our Blue Book is not 
printed, as a matter of fact, until September. Anybody who wanted 
to look at it, had to go up to the statehouse. The legislature closed 
that year, I think, in July some time. We sat for some time that 
year. And that act took effect on August 1. Now, Mr. Chairman, 
I do not care about pressing this particular thing I am going to 
speak about, because I do not think it is of any great importance, 
and I do not want to take your time: l)ut I am only mentioning it to 
show how possible it is to violate, and intentionally, that statute. 
We ne\'er thought to investigate Mr. Horgan's bills. We never 
had any detectives, as he apparently had. following him around for 
days before the election. We did not in(|uire except as to what 
appeared in the record. But, in the course of this investigation, it 
came out that his campaign manager had received contributions and 
made no return whatever of them. The check Avas cashed, and there 
was no dispute about it. and it came out that there had been ex- 
penditures for liquor directly contrary to our statute. And his return 
to the statehouse of that was under '' Political headquarters, $350." 
When we asked about the bill we found that some of it was for din- 
ners. They had political dinners, political ward committees, and 
they had a bottle of beer and something else apiece. I do not want 
to go into any muckraking; I am just mentioning those things. 

Mr. Ramseyer. What point do you make of that? 

Mr. Innes. That it Avas directly contrary to laAV. 

Mr. Ramseyer. That would not hel]) Tinkham out any. 

Mr. Innes. Not a bit, Mr. Congressman. I am onlv suggesting to 
you the old maxim of equity which I used to teach, once, and that is, 
"He who comes into equity should do so with clean hands"; and I 
think a man who comes in criticizing a most ])unctilious and care- 
ful num, as Tinkham has shoAvn himself to be in this contest, ought 
not to come here with violations of laAv of that kind; that is all. 

Mr. RA]\rsEYER. What I Avas trying to suggest Avas, if we should 
find that Tinkham had violated the corrupt-practices act, and also 
find that Mr. Horgan had violated that act, that Avould not help 
Tinkham any. 

Mr. IxNES. Not at all. But I am also offering, further, to shoAV 
you it Avas unintentional. 

Mr. Oglesby. You think that ought to stop us from seating Mr. 
Horgan if Ave put Tinkham out? 

Mr. Innes. I think so. But, also, I think it has bearing upon the 
question of hoAv it is possible, unintentionally, to violate this laAv. 
Let us assume his campaign manager did it. I do not say he did 



76 COlSrTESTED-ELECTIO:^ CASE HOEGAN VS. TINKHAM. 

Mr. Magee. Have you found any authorities on contested-election 
cases bearing upon the question of returns? 

Mr. Ikjs^es. I do not think I have found any authority, but what I 
think you wouhl not know about. I have looked over all the author- 
ities, and they are in the brief, and I have quoted from cases he 
cites. I do not think most of them are directly in point. I think 
they can be readily distinguished. 1 have not discussed them, be- 
cause I think I have gone into them fully in the brief. 

Mr. Ramseyer. The law governing returns is of very recent years, 
anyway. 

Mr. Innes. Oh, very recent years. But I want to say there is not 
a suggestion in this case of any fraudulent votes, or fraudulent regis- 
tration, of people coerced into voting. There is nothing of that sort 
suggested here or any claim of marking the ballots illegally behind 
the rail or tampering with the ballots. 

I will close by saying only this, that I have ])ut in this list, at the 
very beginning some figures in that district. They show the district 
is a close one. It is a very independent district. We do not take our 
politics with great seriousness there on matters of this character. In 
the campaign for governor and lieutenant governor, for instance, 
we gave Gov. Walsh a plurality of 2,000. and the Democratic candi- 
date for lieutenant governor was in a minority of 1,200 votes. 

Mr. Magee. In the same campaign? 

Mr. Innes. The campaign last fall, the last one. 

Mr. Magee. What do the Democrats claim the normal plurality for 
either party is in this congressional district? 

Mr. Innes. I think the district is a very close district. I think it 
is a district any man can carry by a thousand votes, or two thousand, 
and I think this return which I have here proves that. 

I only want to say, in closing 

The Chairman. I want you to take whatever time you think you 
should ; I do not want to cut you off. 

Mr. Innes. I know. You have been very patient, more patient 
than our committees are. I only want to say this, that the whole 
difficulty in this case has been that Brother Horgan can not under- 
stand how he was defeated. What I say, I say without any personal 
feeling. I am not going to discuss the personality of Brother Hor- 
gan, but I simply want to say that since he entered public life, in 
1896, he has run for a great many public offices. He has run as an 
independent against his own party : he bolted his own party for the 
Republican Party once and refused to vote for William A. Gaston. 
And he has been continually in the turmoil of politics. He has at- 
tacked some of the leaders of the party over and over again as he has 
in this brief here, which is bristling with charges against many of 
his own political party. He may be right about it. 

Mr. Magee. When did he run as an independent Democratic candi- 
date against the party? 

Mr. HoRGAN. In 1898. 

Mr. Innes. For the senate? 

Mr. HoRGAN. No ; for the board of aldermen. 

Mr. Innes. He started in 1896. That has been his career. I say 
it not intending to criticize him; he may be doing perfectly right, 



CONTESTED-ELECTION CASE HORGAN VS. TINKHAM. 77 

and be doin"' a public ser\ice in -what he is doing-. But I say he has 
accnnndated animosities throughout his career in politics. 

^Ir. Maoee. You say he bolted the Democratic ticket'? 

Mr. Innes. He bolted the Democratic ticket against AVilliam A. 
(laston, who was the Democratic nominee for governor, and sup- 
ported Bates. 

Mr. Maoee. AVhat vear was that? 

Mr. HoKGAN. In 1902. 

The Ciiair:man. You are mentioning those without saying whether 
he was right or Avrong. but merely to show that he has been a man in 
the thick of the fight and would naturally have enemies'? 

Mr. Ixnes. And has enemies. Perhaps we ought to respect him 
for it. but we must appreciate the fact that such a man would ac- 
cumulate antagonisms and can not go into a contest as well as some 
other num. That is all I want to say about Brother Horgan, except 
to call attention to this fact, that there was not a paper in Boston 
that gave him any editorial support whatever. That is in the record. 
There Avas not a paper. He talks about notices; he says. ''If I was 
not supi)orted. why did they publish this report that Timiltv deserted 
the candidate?" That was good newspaper stuff: the public likes 
something sensational, whether it is true or untrue, and it was read- 
able. Vnit when we talk about newspaper support we mean editorial 
support, and there was not a single paper — and there are a number 
of Democratic papers there — which supported Horgan in this cam- 
])aign. while Tinkham. as the campaign I)ook here shoA\s. had on his 
literature an editorial from the Boston American. Everybody knows 
the Boston American, what ])e()ple it is supposed to influence, if any 
influence it has. You know what it is, and it is not for me to discuss 
here whether it has any influence or not; it has some influence, no 
doubt. But that editorial was ])\it in a conspicuous place on Mr. 
Tinkham's campaign book. Mr. Tinkham entered this contest under 
the best possible auspices. 

There were four candidates mentioned. Senator Lane, who has 
l)een mentioned here, had run for two years and been defeated. Mr. 
Cook had also run once and been defeated. And Mr. Nichols, who 
was mentioned here, had been in the senate. Pretty prominent Re- 
jiublicans, and there was a prett}^ good field to enter into this race, 
which, Mr. Horgan says, was lost at the start. They had a meeting- 
that is all in the record, too — and they left it to the (xeneral Curtis 
Guild to determine Avho was the most popular man. (tcu. (ruild had 
been governor three years, oui' former ambassachn- to Russia, j^icked 
out Tinkham and said. " I think he is the man who will make the 
best run." And they all adopted his suggesticm that Tinkham was 
the man to run; without a contest he had their sui)i)ort. and at the 
same time they were doing everything they could for him ; and yet 
we have the audacious suggestion in this brief that those men were 
jiaid to get out. It has not been pressed, except it was in the charges 
filed originally. 

Xow, Tinkliam had lived for 45 years right in that district. He 
had gone to Harvard College, across the water. He had been a very 
democratic num. he had been to the city council in Boston, he had 
been a member of the board of aldermen in Boston, and he was known 



78 CONTESTED-ELECTION CASE HOEGAN VS. TINKHAM. 

as Boston's alderman intimately for years. He had been in the sen- 
ate for three years as well. He planned out a campaign, which he 
told you about in that record at the time. His campaigns were not 
conducted with the Republican Party at all. He did not have Re- 
publicans, such as Senator Lodge and Senator Weeks and any other 
Republican orators, on the stump, because he said he knew the Re- 
publicans would not vote for Senator Horgan against him, and that 
is what the other witnesses say in the case, and it is true. Senator 
Horgan could not get the Republican vote against George Tinkham 
in that contest. -That is all testified to by their own witnesses. 

liis campaign book was distinctly an appeal to labor, which largely 
makes up the Democratic vote in that district. He did not say he 
voted for everything they asked him to vote for, because he did not ; 
But he had taken hold of some of the important things they were in- 
terested in, which, in my experience, they more appreciate than a man 
who votes for everything that comes along labeled labor. And his 
book and his literature demonstrate the theory on which he went into 
this campaign. His meetings were held with labor men who spoke 
for him, men who were leaders in the labor organization, and they 
went in automobiles to these factories at noon ; not with two or three 
Republicans who were apt to irritate the Democratic converts because 
they would speak of the old campaigns gone by, but with these labor 
men who were conducting a campaign openly for him. They went 
out and talked to those men. You have the evidence of a case where 
he went at one time to a man named Harol, at half past 10 o'clock at 
night, and he introduced himself — he rang the doorbell. Harol had 
probably never met a real Congressman before, or a man who might 
be a real Congressman, Rud he was glad to know him, and is there 
anything strange in his taking hold of him? That was the most 
effective kind of a campaign. That was the cainjjaign he conducted, 
intelligently and carefully thought out. It resulted in his running 
ahead in every precinct, in every ward in the city. And there is not 
much difference in any of the precincts, whether Timilty represents it 
or somebody else; I have no brief for Timilty here, but Mr. Timilty, 
the ward boss (as pictured by contestant), disappeared j^ears ago 
from politics, hasn't he? We see him in the novels occasionally, or 
on the stage. He has gone from our State. Patronage has gone. 
The civil-service laws protect the employees, or determine who shall 
have the places, at least in Massachusetts, and why build up this man 
of straw to knock him down again? Why attribute all of this to 
Mr. Horgan's arrival last June in the eleventh congressional district ? 
And, to Mr. Timilty, why attribute it all to him, because this vote 
shows a falling off even in Horgan's own district, consistent in all 
precincts, simply showing they did not want to vote for him. 

Now, I want to say one thing in closing, and I think I ought to 
emphasize this. Perhaps I feel more keenly about this case than I 
should ; but I feel that men have been brought into this case, and their 
names have been given to the public and to the press, without any jus- 
tification or excuse, upon mere idle rumor. I think Mr. Tinkham has 
had the proper results of an election honorably won taken from him, 
in part at least, by this proceeding and by this character of evidence, 
1 do not know whether you gentlemen who are here in Congi-ess 



CONTESTED-ELECTION CASE HOEGAN VS. TINKHAM. 79 

lealize the iiuportance of the positions which you hold and what a 
^reat honor it is to a man who has never been a Congressman to look 
forward to having a seat in this Congress. I think as time goes by 
yon accept it, perhaps, as a part of the duties of the day, and you do 
not realize what an important thing it is to a young man who has, 
perhaps, on leaving college gone into public life and who has con- 
sidered questions in an academic way, but who looks forward for 
a chance to decide the important questions he has merely thought 
about. It is an impoitant thing and a great honor to be elected to 
the Congress of the United States. You have to give u\) other tilings 
of value to occupy the seat, and, after all, one of the things that you 
get, and I sometimes think it is the best thing and the most gratify- 
ing, is the hearty congratulations of 3'^our friends and the feeling that 
yon have won a fight and won it fairly. Now, I say we have been 
deprived of that perfectly just honor and proper honor, and we had 
a right to it. 

Mr. Oglesby. You are oversensitive. I have not seen a news- 
paper in the last 10 years which had a kind word to say about a 
Congressman. 

Mr. Inxes. I think these charges are beyond that. When a man 
has been as punctilious and as careful as George Tinkham has been 
throughout his entire life it is very unpleasant, to say the least ; and 
I say it is taking away from him just honors which he has a right to 
have to have people discussing evidence of this character, that he is 
passing out vials of whisky to people to get votes and bribing people 
to vote for him, when there is not a particle of direct evidence to 
substantiate it. That brings me to my conclusion, and that is, Mr. 
Chairman, I think we have a right to suggest that we ought to have 
in this case a fairly speedy decision. I think we have a right to 
have something more than a decision in our favor; I think this 
committee ought to characterize in no uncertain language the efforts 
of this contestant and the character of the testimony that his been 
offered here. There is no other place that contestee can go for 
vindication, that I know of. 

Mr. Oglesby. That would only be done in case he is seated. We 
never speak harshly about a man who is defeated. 

Mr. Innes. I do not want you to speak harshly about anybody; 
but I do feel that your preclecessors at times have adopted very 
strong language, and have condemned in a most positive way cases 
they thought were brought with a desire to injure political opponents 
or air political differences. I think you ought to speak strongly 
about this case; and I feel if you do not you are going to make it 
doubtful whether men with a desire to retain their reputations in the 
community, men with sensibilities, will want to stand as candidates 
for Congress hereafter. 

(Thereupon, at 1.35 o'clock p. m., a recess was taken until 2.15 
o'clock p. m.) 

AFTERNOON SESSION. 

The committee met, pursuant to the taking of the recesst, at 2.15 
o'clock p. m. 

The Chairman. You may proceed, Mr. Prout. 



80 CONTESTED-ELECTION CASE HOEGAN VS. TINKHAM. 

STATEMENT OF ME. WILLIAM C. PROUT, ATTORNEY FOR THE 
CONTESTANT— Resumed. 

Mr. Prout. Mr. Chairman and gentlemen, this has dragged on a 
little longer than we thought it would, but I will wind it up now 
as quickly as I can, inasmuch as Mr. Innes is anxious to get away 
on the 3.04 train and I do not want to talk indefinitely. 

There are several things which were mentioned by Mr. Innes to 
which I should like to call the attention of the committee. One was 
the alleged untruthful statement of the contestant's reply brief con- 
cerning certain statements by a witness for contestant, one Mr. 
Duffin. So far as that is concerned, on the face of it, it may look as 
if it was not justified by the facts, but when that was written I 
had this in mind: In the first place, at the time I originally ex- 
amined Mr. Duffin I had no knowledge of this evidence of Mc- 
Laughlin which was to follow, so tliat I did not have it in mind that 
there was to be any contradiction of this kind, since I was only fur- 
nished with the information of the evidence as it came up from day 
to day. 

The Chairman. You did not call Duffin for the purpose of con- 
tradicting the other man? 

Mr. Pkout* No, sir; I inquired of Duffin, and he said that he did 
not know anything. At that time I did not know that there was 
any other specific evidence. Later, it appeared that McLaughlin 
testified as to a conversation he had with Duffin, and what I had in 
mind when I wrote that statement in the reply brief was that at no 
time Avhen McLaughlin made these specific charges did Duffin deny 
them, as he might have done when the contestee had his time to call 
witnesses. I mention that not because it is of any great importance 
but because it might be thought that that misquotation here, or mis- 
interpretation, was deliberate. And on that point I would call the 
attention of the committee not to attack his fairness but from the 
fact that the conte.stee in his brief did the same thing. For instance, 
on page 8 he made a quotation of a table of votes in which he omitted 
the vote of ward 18, and he also quoted the vote on page 9 of the 
record — he made two tabulations of votes, omitting the poll of ward 
18. Also, so far as his objection to the introduction of the letter 
from ex-Congresman Peters is concerned, I say these votes on pages 
8, 9, and 10 are votes which are not in the record but which took 
place a year after the record closed. Also, as to the editorial in his 
brief, it" was not contained in the record but was printed in some 
paper long after. So there is no serious objection, gentlemen, to our 
])utting that in. It was not done in any underhanded way. 

The Chairman. Is it agreed by both parties that that letter was 
really written by Mr. Peters — the one in October, 1915 — and that 
that editorial appeared? Is it a fact? 

Mr. Innes. If Mr. Prout says so. I would take his word for it; 
surel}^ 

The Chairman. There is no doubt about it? 

Mr. Prout. No, sir. 

The Chairman. There is no doubt about the editorial? 

Mr. Prout. I did not see it, but I take it for granted that it was in. 

As to the importance of the Peters indorsements and letters which 
passed back and forth, it is not very great, except so far as it would 



CONTESTED-ELECTION CASE HORGAN VS. TINKHAM. 81 

go to show good faith, or hick of good faith, on the part of tlie con- 
testee or persons interested in liis campaign. 

So far as the position of Mr. Peters is concerned, it is in evidence 
that the contestant did talk Avith Mr. Peters here in Washington, 
and that Mr. Peters did assure him of his support and told him he 
Avould be glad to do anything to help him, once, in March, 1914, and 
also in September, 1914, immediately after the primaries; and Mr. 
Peters assured the contestant of his support and of his Avillinsness to 
do anything he could to be of assistance to him. 

So far as the indorsement is concerned, it is in evidence that the 
contestant's campaign was managed by a gentleman named John F. 
McDonald, who has managed the campaign of the first victorious 
governor of Massachusetts that they had in Massachusetts for many 
years, and has managed the victorious campaigns of sev'eral gov- 
ernors, and the campaigns of the last tAvo 

The Chairman. What did he manage this time? 

Mr. Prout. For mayor of Boston; at this time he managed the 
campaign of the contestant; and he also comes from the Avard of 
Congressman Peters, and Avas the man Avho started Congressman 
Peters in political life by placing him on the first ward committee, 
and has been Avith him and been of great assistance to him in all of 
his campaigns. He Avas very much interested in the campaign of 
contestant, and, knoAA'ing Congressman Peters's position in the mat- 
ter, having been in communication AA'ith him, he possibly felt justi- 
fied in giving out some AA'ord he had from Congressman Peters; and 
it is not in evidence, but he Avas probably responsible for the placing 
of that indorsement on the circular. Noav, it is not at all reprehensi- 
ble, and there is no evidence that Congressman Peters AA^as not Avith 
the contestant at any time. He Avas Avith him and was willing to do 
anything for him, and did actually speak for him tAvo or three nights 
prior to the election. 

So far as the absence of any letters is concerned, there Avas testi- 
mony from three Avitnesses that letters and telegrams did pass to 
and fro. The contents of some of the letters Avas given, and from 
these letters of Congressman Peters it is clear that he Avas in com- 
munication Avith contestant and did s])eak for him. 

The Chairman. Of course, wdiile that Avas in a Avay unAvarranted, 
the Aveight that I think it was meant to haA^e by Mr. Innes Avas that 
the name of Mr. Peters was Avrongfully used to obtain votes for the 
contestant. Is that the idea ? 

Mr. Innes. That AA-as the idea I used in connection Avith that, and 
also the reiteration of it in the supplementary brief, and the failure 
to produce any letter on the subject AAdiatever. 

The Chairman. I see. 

Mr. Prout. On that point, I simply quote pages 361 and 389 of 
the record, and also page 303, to the effect that Mr. Peters had sent 
a letter stating that Mrs. Peters was sick and had the baby, and that 
it Avas impossible for them to come to contestant. There Avere a great 
many letters passed back and forth. Also on page 409 — but that is 
of no great importance — and also on pages 539 and 540. 

Mv remarks may appear disjointed as I go along, but I am simply 
taking up the points made by Mr. Innes in his argument. 
46339—16 G 



82 CONTESTED-ELECTION CASE HOEGAN VS. TINKHAM. 

So far as the statement that John J. Sullivan destroyed some 5,000 
to 7,000 circulars of contestant, and the contention that that is not 
indicative of Timilty's position in any way, because Sullivan was 
elected clerk of the Democratic city committee, that is not significant 
because he is not the clerk of the Democratic city committee, but he is the 
clerk to the president of the Democratic city committee, appointed 
by him, and is his personal choice ; and so far as Sullivan not being 
called is concerned, there is evidence that contestant accused Sullivan 
of not sending out those circulars, and that Sullivan said he did 
send them out, and the contestee could, of course, have summoned 
him and put him on the stand ; hut the contestant produced the man 
who handled the folders, and he testified that the last 5,000 to 7,000 
were never folded. 

Mr. Ramseyer. Was Sullivan paid by anybody ? 

Mr. Prout. He was paid as clerk of the president of the Demo- 
cratic city committee. 

Mr, Ramseyer. Did Timilty pay him out of his own pocket? 

Mr. Prout. He was probably paid out of the funds of the Demo- 
craitic city committee, and also paid to send out these joarticular cir- 
culars. 

I understand that, so far as the elimination of Timilty as the head 
of the Democratic city committee is concerned, it is of no great im- 
portance. It is simply true that he has been eliminated, and it was 
to a large extent due to the fact that the Democrats in Boston realized 
that with such a man at the head of the city committee they could 
not hope for any success, and it was after one or tAvo failures with 
him at the head of the city committee that the Democrats ousted 
him. It is also true that he did want to be elected, and that he was 
ousted summarily. 

Mr. Ramseyer. Is that in the record ? 

Mr. Prout, That is not in the record. So far as factions among 
the Democrats are concerned, there is nothing in the record, and, as 
a matter of fact, there is no division, as suggested by the attorney 
for the contestee, which would line up Mr. Timilty with Mr. Fay 
or Mr. Watson, the other candidates, on one side, and Mr. Horgan on 
the other. As a matter of fact, there was no faction in this congres- 
sional fight, and while there are factions in Boston, of course, there 
is no well-defined faction in this congressional district, in the wards 
that make it up. 

The Chairman. Is there a Horgan faction or a Timilty faction? 

Mr. Prout, There is no Timilt}^ faction outside of Timilty's own 
ward and neighboring precincts, and the adjoining ward, the other 
wards that go to make up the senatorial district. 

On the point of liquor being used there is one piece of testimony 
on that, and it was admitted by Daniel Lane, one of the candidates 
for the Republican nomination, that he did spend money in bar rooms 
during the campaign, and in the interest of the contestee. He testi- 
fied that he never was reimbursed any money, but that does not affect 
the fact. 

There is also testimony that Tinkham was in German halls on the 
Saturday afternoon prior to election, and that money was spent 
there for liquor, as well as the testimony of the other witnesses that 
I have already referred to and the testimony of Craven on his own 
admission. 



CONTESTED-ELECTION CASE HORGAN VS. TINKHAM. 83 

There is also the interesting fact that one of the barrooms spoken 
of as dispensing liquor was owned by Garrity. Garrity testified as 
a witness and endeavored for a long time to conceal any connection 
with the contestee or anybody else. He said that he was not inter- 
ested in matters political and did not give them any thought, and 
had not done anything in the preceding campaign, but later on he 
admitted in his testimony that in response to a telephonic message 
from the contestee he called at the con.testee's office and was in con- 
ference with him. There is no definite connection shown there, so 
far ns the " disbursement," or whatever you want to call it, of liquor 
was concerned, growing out of that conference; but it is a fact that 
there is testimony that Garrity did dispense liquor, that he was in 
conference with contestee, and that he endeavored to conceal the 
connection with the contestee clearly appears in the evidence. 

Of course there are s( me of the witnesses who are not of the high- 
est type; there is no question about that, and we would not for a 
minute presume to argue otherwise. You do not find witnesses of 
high type who are mixed up in these cases, either in taking money or 
dispensing liquor or anything else, and you have to give their testi- 
mony the Aveight that you think it is deserving of, both so far as their 
testimony appears in the record and from the surrounding facts and 
circumstances. 

Now, I come to the point about Mason and the rallies for negroes. 
There is no evidence that more than one rally was held. 

(At this point there was a call of the house, and a recess was taken 
for 15 minutes in order that the members of the committee might 
go upon the floor and vote. At the conclusion of the recess the com- 
mittee i-esumed its session. ) 

INIr. Pkout. I was referring to the testimony about iSlv. Mason and 
certain rallies that were held for the negroes. As a matter of fact, 
there is no testimony about rallies being held on two nights. There 
is no testimony about a hiring of an automobile or automobiles or 
any trumpeter of any kind. The only testimony is that of the con- 
testee himself, Avho said he understood there was a rally held in some 
hall near Lenox Street, and he thought he was at the rally ; but that 
is all the testimony there was on that. 

As far as the circulars for negroes were concerned, the amount was 
$27.85, and the testimony as to the number of negroes varies from 
400 to 700 voters. Mr. Innes did not know whether 1-cent or 2-cent 
stamps were used, but there was no attempt to check up and find out 
how much money was spent and how much money the man kept for 
himself. 

Before I forget it, I want to make a statement which Brother 
Innes asked me to make, and that is with respect to the purchase 
of tickets to balls and dances. His view of that is that the purchase 
of tickets for dances and balls is perfectly legitimate unless the 
purchase is made from a political'organization and for manifestly 
political purposes. He neglected to touch on that in his argument, 
and he wanted to have his statement on that put before the com- 
mittee. 

The Chairman. Will you state again what you say he believes. 

Mr. Prout. He believes that the purchase of tickets for dances and 
balls is perfectly legitimate unless the purchase is from a political 



84 CONTESTED-ELECTIOlSr CASE HOEGAN VS. TINKHAM. 

organization and for manifestly political purposes. On that point 
I simply want to say that any purchase of tickets which is mani- 
festly for political purposes, as these purchases were — that is, the 
purchase of a large number of tickets which were not used by the 
men who made the purchases, and who made the purchases indis- 
criminately from any organization that came along, as testified to by 
one Aspacher, does not come within Mr. Innes's rule ; and, of course, 
so far as his rule is concerned our view is that any payment made, 
whether indirectly or directly, if for political purposes 

The Chairman. Suppose a number of the boys get together and 
form the Humpty Dumpty Social Club, and sell a man running for 
office $25 worth of tickets; is that a contribution for political pur- 
poses or for the cultivation of sociability or society? 

Mr. Prout. Certainly for political purposes; and particularly if 
the Humpty Dumpty Club never runs any ball, which is quite com- 
mon. 

So far as the testimony of Lally is concerned, that was corrobo- 
rated by Mr. Tobin, and the other charges against Lally that he 
served legal papers for contestant. Tobin's evidence on page 311 of the 
record consists of the fact that he delivered one paper for the attor- 
ney of the contestant. 

On the question of Erickson, Lally testified as to one Erickson, 
that he was unable to locate him, and later the contestee produced 
one Erickson that Lally testified was not the man he referred to. 

So far as the giving on money for advertising to Monroe Trotter 
is concerned, there is no evidence that money was given to Monroe 
Trotter. An advertisement was put in the newspaper called the 
Guardian, and the return for that advertisement was made, and there 
is no evidence that Trotter was a voter or even lived in the district. 

On the question as to the interpretation of the State law and Fed- 
eral law on the excess of expenditures, and the returns for expendi- 
tures, I believe the committee has that thoroughly in mind. I would 
say, however, in passing, in regard to Mr. Innes's statement as to a 
decision by the Supreme Court of Massachusetts, recently rendered, 
in a case called the Swig case, that that has no application whatso- 
ever to this particular case, and if Mr. Innes left the statement or 
the impression that it had, I do not believe that he intended to 
leave it that way; but I understood that he did. The Swig case 
was only on the question of the right of one legislature to delegate 
its power to some other body, whether judicial or otherwise, and 
that does not interest us in any way. 

Mr. Rogers. It appeared in the record this morning that there was 
involved in that case a decision on the constitutionality of the cor- 
rupt practices act. That was true only in so far as the portion 
of the decision was concerned which involved that delegation of the 
power to the three justices of the court? 

Mr. Prout. Yes, sir. Now, on the testimony as to the use of 
liquor on behalf of the contestant, the only evidence of that is that 
at a meeting of the committee of the contestant at which a luncheon 
was served one or more members of the committee had one bottle of 
beer. There was no other liquor of any kind served, and nobody 
had over one bottle; and it was not a public meeting; it was not a 
rally, the voters at large were not admitted to it. It was only a 



CONTESTED-ELECTION CASE HORGAN VS. TINKHAM. 85 

meeting of the small committee of the contestant which had charge 
of the contestant, and it therefore comes under the rule of social 
entertainment and is not a violation of the act. 

Mr. Magee. Who paid for that ? 

Mr. Prout. The contestant, probably. But it was something 
which Avas not ordered by him ; and if the men who attended the 
luncheon ordered a bottle of beer to take with their luncheon it was 
up to the contestant either to refuse to pay for it or to pay for it, 
and in view of the fact that if he had thought of it he would have 
decided that it was not a violation of the act, and consequently he 
paid the bill for the luncheon. 

Mr. Magee. There were how many present there? 

Mr. Prout. Something in the vicinity of 12 ; not over 15. 

As to the fact that contestant's independence of thought or action 
affected him unfavorably, that is not so. because if it were so it would 
have defeated him in the primary, would have defeated him for office 
between the years 1902 and 1914, and. as a matter of fact, the move- 
ment in 1902 was not in favor of a Kepublican as against a Democrat, 
but was a popular movement directed against certain evils of the 
convention system and was led by a man who immediately following 
that was elected district attorney of Suffolk County against a man 
who had both the Democratic and the Republican nominations; and 
if it had any effect with the voters at large it certainly could not 
have had any evil effect. 

Mr. Rogers. There are eight wards in this congressional district, 
are there not, in whole or in part? 

Mr. Prout. Yes. 

Mr. Rogers. Had the contestant ever been a candidate for office in 
any of those eight wards other than his own ? 

Mr. Prout. The contestant had never been a candidate for any 
office in any ward, with the exception of his own w^ard; and he was 
born and lived the greater part of his life in ward 11, at the other 
end of the district, and was a candidate at large in 1899, covering 
the city of Boston. 

Mr. Rogers. For the office of alderman ? 

Mr. Prout. Yes, sir; and as a matter of fact the contestant not 
only got his full Democratic support, but in his campaign for the 
senate he got strong suj^port from all parties. 

So far as the support of contestee by labor men is concerned and 
the fact that labor men were on the stump for him. the only labor 
men who were on the stump for him were two, neither one of whom 
lived or voted in the district, and they had no following, and their 
action was simply a personal action and was not the result of any 
action on the part of any labor union or labor unions; and, of course, 
we have cited already the widespread indorsements by labor organ- 
izations officially, as well as the personal letters from the legislative 
agents of various unions contained in the record, and their appear- 
ance on the stump. 

In conclusion, I simply would like to say that apparently in the 
mind of any reasonable man there should be no question but that 
Mr. Timility did support the contestee; there should be no question 
but that that support was unfair and reprehensible in a great many 
ways, and in the minds of persons conversant with political matters 



86 CONTESTED-ELECTION CASE HOEGAN VS. TINKHAM. 

in general, conversant with all the testimony in this case, tlie conclu- 
sion is almost irresistible, if not quite, that that support must have 
been based upon some illegal inducement. 

Mr. EoGERs. On page T of the record there appears a table showing 
the difference in votes between Gov. Walsh and the contestant, ward 
by ward, throughout this congressional district. That may be else- 
where in the briefs, though I have not seen it. That shows that in 
each and every ward of the eight, Mr. Horgan ran behind Gov. Walsh 
anywdiere f rom 98 votes to 611 votes, with a total of 2,787. Is there 
any disposition on the part of the contestant to question the accuracy 
of those figures ? 

Mr. Prout. No, sir ; we have already put in a table which contains 
those figures, as well as for all the other offices. 

Mr. Russell. And the contestee ran about the same amount ahead 
of Gov. McCall on the Republican ticket. 

Mr. Prout. A comparison of the vote of the contestee with Gov. 
McCall will show that Gov. McCall received from 52 per cent of the 
vote of the contestee up to 99.9 per cent, receiving the 99.9 per cent in 
the home ward of the contestee and the 52 per cent in ward 18, which 
is Mr. Timilty's ward, show^ing that the vote in ward 18 which Mr. 
Tinkham got, as shown by that percentage, bears out the contention 
of the contestant that there was some underlying reason for that vote. 

Now, I should like to call the attention of the members of the com- 
mittee to the law already cited, and to the fact that this committee 
is the judge of the admissibility of the evidence and the weight of 
evidence, and that it was the duty of the magistrate who sat here to 
report everything to the committee; and in order to give the com- 
mittee a picture of everything surrounding the case we thought that 
everything should go in and consequently everything has gone in, and 
it is for this committee to say just how much weight each piece of 
testimony is entitled to, and we would respectfully ask this committee 
to consider the testimony given by everybody, and all the facts and all 
the evidence surrounding the case, and to apply to the case the knowl- 
edge that you men have in common with men in general as to political 
practices and customs, and the special knowledge that yon have as 
persons who have gone through political campaigns yourselves, as to 
the probabilities of the case. 

Now, you are not bound by the rules of evidence. You can con- 
sider any evidence that you care to consider and give it the weight 
you think it is entitled to ; and in a case of this Idnd, in applying 
the knowledge you have of politics in general and the knowledge of 
law you have, and of the laws of evidence, you must agree that in 
this particular kind of a case it is impossible to get direct evidence, 
and you are not only justified in proceeding on circumstantial evi- 
dence, but are really forced to it, and in considering that you can 
consider what is the law in Massachusetts, and I presume it is the 
law of other States. If a man is walking down the street wearing 
an overcoat and carrying another a police officer has a right, in Mas- 
sachusetts, to arrest that man, with no knowledge of where he got 
the coat, or whose it was or anything about it. He can arrest him 
and bring him into court and the man can be tried and can be found 
guilty on no other evidence than his being in possession of a coat 
stolen from some party unknown. If that be true elsewhere ordi- 
narily as it is in Massachusetts, where a man can be found guilty for 



CONTESTED-ELECTION CASE HORGAN VS. TINKHAM. 87 

the unexplained possession of property wliich a police officer thinks 
was stolen from some person unknown, why can we not apply that in 
this case and saj^ that Mr. Timilit}^ did certain things — was found 
in possession 

Mr. Maoee. Suppose the man who had the coat denied he had 
stolen the coat and testified it was his own ? 

Mr. Prout, Under the statute the burden is upon him to explain 
the possession of the coat. 

Mr, Magee. Suppose he proved it was his own coat, would he then 
be convicted? 

Mr. Prout. If he claims that the coat is his own, the judge, from 
his observation of that man and from what knowledge he may obtain 
from the police officer of a previous record of that man, can draw 
his own conclusions, and can, even in the face of an allegation on the 
part of that man that it was his own coat, find him guilty. 

The Chairman. Your point is that it shifts the burden upon him, 
and that applying the analogy in this case, it is up to Mr, Tinkham 
to show that he is lawfully in possession of this seat, after you have 
cited circumstances which show, ih your judgment, that he is not 
lawfully in possession of it? 

Mr, Prout. Yes, sir. I make two points 

Mr. Ma(jee. In my State you have to prove a man guilty beyond 
any reasonable doubt. 

Mr. Tillman, It is so everywhere in the world. 

Mr. Magee. If a man swears that the property is his own 

Mr. Russell. Some fellows swear they did not do a thing, and 
there are so many other circumstances surrounding it showing that 
they are lying about it that their testimony is worse than if they 
had not said a word. 

Mr. Tillman. The principle of the criminal law is that where one 
is in possession of property recently stolen, there is no presumption 
of law that he is guilty, and it is a weak one of fact. The Supreme 
Court of Arkansas, in construing that very same thing, following 
the language of the criminal law writers, Story and others, on tliat 
proposition, has said that in the first place if a man goes down the 
street with an overcoat, the presumption would be that it is his over- 
coat and not somebody else's. If it is known to be a stolen overcoat, 
then being in possession of property that is stolen, the law writers 
say it is a weak presumption of fact that he did not come by it 
honestly. As to the presumption of law, a man is presumed to be 
innocent until he is proven guilty, and that is not only the presump- 
tion of the common law. but under the code in every State. 

Mr. Prout. Of course, the law in Massachusetts is not different 
from all other laws. It is the same as it is elsewhere. A person 
arrested for a crime is presumed to be innocent until the contra i-y is 
proven. Also, he must be proven guilty beyond a reasonable doubt. 

Mr. Magee. It requires stronger proof in a criminal case than in 
a civil action. 

Mr. Prout. Yes; and in that case it would require a stronger pre- 
sumption than in this case. 

Mr, Ramseyer, In this case what rule do you claim applies, the 
civil rule ? Is not the burden upon the contestant to prove that he is 
entitled to this seat? 



88 COISTTESTED-ELECTION" CASE HOEGAlSr VS. TINKHAM. 

Mr. Prout. The burden is upon the contestant, of course, to make 
out his case, and we submit that on the legal authorities cited here on 
yesterday, with the production of all this testimony, a strong case 
is established. 

Mr. Magee. What part of this congressional district — eight wards, 
I think you said it contained — was included in Senator Timilty's 
district ? 

Mr. Prout. Three wards— 18, 19, and 22. 

Mr. Magee. Is it jour contention that the influence of Timilty ex- 
tended through all these wards? 

Mr. Prout. Through the whole district? No, sir. The voting in 
the district varies from 52 per cent of Tinkham vote in wards 18, 19, 
and 22 to over 99 per cent in ward 11, showing a wide disparity in 
the vote. 

Mr. Magee. Did either contestant or contestee reside in ward 11 ? 

Mr. Prout. The contestee resided in w^ard 11. 

Mr. Magee. That is where the biggest vote was? 

Mr. Prout. That is where the lowest vote was for the contestee, in 
comparison with the other votes. 

On that question of the stolen overcoat which I cited I would say 
that you might take some other stolen object. Within two or three 
days before coming down here I saw in a paper a case where a man 
was arrested for being in possession of a bag of coal weighing 100 
pounds, and was convicted of stealing that bag of coal from some 
person unknoAvn, and he w^as convicted w^ithout an}^ evidence that 
it had been stolen and largely on the fact that he had it in his pos- 
session, and it looked queer, and he had a criminal record ; and from 
all the facts and circumstances, and also the fact that he could not 
explain the possession of it, he was convicted. It was a criminal 
case, and a higher degree of proof is required than in this case, 
which is not a criminal case. 

Mr. Magee. Has that statute been passed upon? 

Mr. Prout. I do not know that that statute has ever been passed 
upon by the supreme court, but it has been on the statute books there 
for 10 or 11 3^ears, more or less, 

Mr. Eussell. If the law is as it is in my State, where the de- 
fendant was not bound to testify at all, I do not understand how 
they could have convicted him simply because he had possession of 
it. They would certainly have to have some testimony. 

Mr. Kamseyee. They would have to prove the corpus delicti ; that 
is, they would have to prove that it was stolen property. Then they 
would have to prove that he had it ; and then, if he did not explain, 
the presumption would be that he had stolen it. 

Mr. Russell. Mr. Prout said that he w^as convicted merely upon 
being found in possession. 

Mr. Prout. The mere possession raises the presumption of theft. 

The Chairman. If wdien a man was walking on the street carrying 
an overcoat he was arrested and taken into court by a police officer, 
and all the police officer could say was that when he took the man 
off the street he had the coat on his arm, and the judge said, " What 
have you to say ?," and he said, " I exercise my right to say nothing " ; 
and the only evidence being that he was arrested on the street carry- 
ing a coat, he could be convicted on that, God help us ! I think half 
of us would be convicted. [Laughter.] 



CONTESTED-ELECTION CASE HORGAN VS. TINKHAM. 89 

Mr. Tillman. The laAv is uniformly the same on hirceny, which is 
the taking and carrying away, stealing and converting of the prop- 
erty of another; and if a man is knowingly in the receipt of stolen 
property, he is gnilty. Still, it must be knowingly. 

Mr. Prout. Well, we will let that go; and I will ask you, gentle- 
men, to consider this principle alone apart from any law at all. 
Your good wife goes down to the kitchen and finds the baby wiping 
her hands on the roller towel, and on the towel and on her hands there 
is jam. Then she goes to the pantry and she finds that somebody has 
been in the jam pot. 

The Chairman. There is the corpus delicti. 

Mr. Prout. In that case, although she did not see the jam taken, 
she finds that it was taken ; and from the fact that she finds somebody 
stole it, and from the evidence of the jam on the baby's hands, she 
is justified in the presumption that the child did take the jam; and 
in this case I say we have found Senator Timilty and other witnesses 
concealing evidence by testifying that it was not so, and I say you 
are justified in the conclusion that Senator Timilty got the jam. 

Mr. Russell. You think your testimony is absolutely conclusive, 
and ought to be to this committee, that Senator Timilty did, in fact, 
work for the election of the contestee? 

Mr. Prout. I do not think there is any question about it. In fact, 
when Brother Innes was asked the question this morning he said he 
would prefer not to answer it. 

Mr. Russell. They did not concede that he did. 

Mr. Tillman. I believe he did. I think he actually threw the 
fellow. 

Mr. Russell. I am satisfied that he did, but I do not know that the 
evidence makes it absolutely conclusive that he did. 

Mr. Prout. The only question seems to be, to my mind, whether 
or not the contestant has sufficiently shown that it was done for a 
dishonest purpose. 

Mr. Russell. Yes; if he did it honestly and in good faith — and he 
had a right to do that. 

Mr. Prout. And on that point I have cited a great deal of law ; 
and without taking any further time of the committee, I should like 
to be given permission, and also I will communicate the same to 
Brother Innes if given permission so that he may do likewies, to 
submit a short brief on the law. 

The Chairman. That will be all right. 

Mr. Russell. Yes. 

The Chairman. Let us have your brief on the law, and you notify 
Mr. Innes so that he may file one also. 

Mr. Magee. Is there anything here to show, or is there any claim, 
that there were any differences or that any troul)le ever existed be- 
tween Senator Morgan and Senator Timilty prior to this election? 

Mr. Prout. The'testimony of Timilty "was that they were both 
friendly. 

Mr. Tillman. I thought there was evidence of an attempt on the 
part of Timilty to get Horgan out of the way, so that he. Timilty, 
might run for Congress. 

Mr. Prout. Yes,"that is one of the very interesting extracts from 
a Boston journal. That is the only thing I have ever seen or heard of 
it; because Senator Timilty probably realizes as well as anybody 



90 CONTESTED-ELECTION CASE HOEGAN VS. TINKHAM. 

else that he is not congressional timber; and while on that I should 
like to say that there is absolutely no evidence that the contestant 
was responsible for any of those articles in the paper or any of the 
things contained in it; and, as a matter of fact, other articles were 
contained in other papers which were very strongly opposed to him, 
the Boston Record, for instance, which published the articles about 
Senator Tinkham, the contestee being present at the Timilty Club, 
and other things in other papers which could not possibly be at- 
tributed to the contestant, and there is no evidence whatsoever that 
he is responsible for any of those things in any of the papers. 

Mr. Russell. Did Senator Timilty support the contestant for the 
nomination at the primary ? 

Mr. Prout. Senator Timilty kept his hands out of that altogether, 
because there was a candidate from his own ward who was running 
and another candidate running. There were three candidates — Mr. 
Fay, who lived in ward 18; Mr. Watson, who had lived in ward 18 
up to that time, but had recently moved to ward 21, the adjoining 
ward; and the contestant. Mr. Timilty expressed no preference or 
choice in the primary. 

Mr. Russell. Was the contest decisive in that case or was it a 
closely contested election ? 

Mr. Prout. As proved by the evidence cited by the attorney for 
the contestee this morning the vote was fairly well divided. The 
contestant won by a plurality of about 800. 

Mr. Russell. I believe you stated in your testimony on the matter 
that the other candidates for Congress in the primary both supported 
the contestant in the general election? 

Mr. Prout. Yes, sir; went on the stump for him at three or four 
rallies a night. 

Mr. Russell. Was there any question about treachery on their 
part ? 

Mr. Prout. None. 

Mr. Russell. You think they were entirely loyal ? 

Mr. Prout. Yes, sir; absolutely. 

Mr. Russell. And tried to get the support of their friends for the 
nominee ? 

Mr. Prout. Yes, sir. 

Mr. Rogers. Were the names of Fay and Watson signed to that 
circular which is in evidence — ^that big, green circular? 

Mr. Prout. That I could not say. They probably were. 

Mr. Rogers. Is there any evidence in the record as to whether 
Senator Timilty authorized the use of his name ? 

Mr. Prout. The only evidence on that point is that of one of the 
witnesses who was asked that, and he testified that those names were 
all procured by persons sent out here and there to get them, and that 
he procured some himself ; but he did not say which particular ones. 

Now, that is all I have to saj, and if I have the permission of the 
committee I will notify Mr. Innes that he may submit a brief on the 
law, and I will do likewise, and I will submit a copy of my brief to 
him also at the same time I send it to the committee. 

The Chairman. Mr. Horgan, you have been here all day, and if 
you would like to make a statement I think the committee would be 
willing to hear you. 



CONTESTED-ELECTION CASE HOKGAN VS. TINKHAM. 91 

STATEMENT OF MR. FRANCIS J. HORGAN, THE CONTESTANT. 

Mr. Hoi!G AN. Mr. Chairman and gentlemen, I do not kno^Y that it 
is necessary, and perhaps it is not advisable, and I think perhaps it 
is unfair in the absence of the attorney for the contestee for me to 
make an^^ statement to the committee. 

The Chairman. You have been sitting here all day. We are not 
bound exactly by strict rules, and if you want to make any statement 
I think the committee would be perfectly glad to hear you. 

Mr. HoKGAx. What I would say, Mr. Chairman and gentlemen, 
would be largely reiteration, and I simply would desire to emphasize 
this point, if I may, waiving the evidence which appears in the 
record, the value of which I presume you gentlemen are the final 
arbiters of. The weight of the evidence you are the final arbiters of; 
the rules of evidence yo uare the one to determine upon. Upon the 
question of conspiracy I believe I would like to emphasize the fact 
that where conspiracy is charged, especially in contested-election 
cases — assuming for the moment that you are governing yourselves 
by the action of your predecessors — it is a well established rule, 
taking into consideration all the circumstances of the case, and recog-i 
nizing, as men must that know human nature, that it is absolutely 
impossible to implicate the parties directly in interest or to show 
the consideration, that it must depend absolutely upon indirect evin 
dence; and the value of that indirect evidence does not merely con-< 
sist in the statement of John Jones or Thomas Smith or two or three 
of them, it is the cumulative evidence of all of them combining, ta 
that particular conspiracy. If those men have convinced the minds 
of you as intelligent, practical men, that Timilty did an overt act 
wdiich of itself is unexplainable, it is proper for you to go behind and 
try to ascertain the reason: and to ascertain the reason you must 
analyze the evidence of the various witnesses; and in determining 
the value of their evidence you must appreciate, as I believe you do. 
the fact that these witnesses must give largely circumstantial 
evidence. 

The Chairman. Let me say this to you. Here is my difficulty^ 
and it may be the difficulty of other gentlemen on the committee : I 
will say — though this is merely an opinion which is subject to change 
on reflection and discussion — that so far as I can see, Timilty did 
go into an alliance with the Republicans against you, and I have no 
hesitation in saying that it was a most base political act. But, as^ 
suming that to be true, did he not have a legal right to do that; 
whatever we might think of a man of honer — or not of honer, if 
you would so put it — is there anything in that that he did not have 
the right to do ? 

Mr. HoRGAN. Mr. Chairman, I would like to make this statement. 

The Chairman. I would like to have you make any statement you 
want to. 

Mr. HoRGAN. First of all, I agree with the chairman, that if Mr< 
Timilty as a citizen himself did a certain thing Avhich may have 
been reprehensible in itself, so far as he was concerned and so far 
as I was concerned, that act amounted to nothing so far as any 
possibility of a conspiracy may have been concerned or anv possi^ 
bility of illegal consideration may have been concerned; but if iii 



92 COISTTESTED-ELECTIOlSr CASE HOEGAN VS. TINKHAM. 

addition to that he was chairman of the Democratic city committee 
and had been a member of the ward committee for 20 years, and he 
liad on the night before election on the public platform, in introduc- 
ing me as the Democratic candidate for Congress, denied that there 
was an}'' truth in the statement of his proposed knifing of me, and 
had on the night before done all these friendly acts with a man 
with whom he had been politically and personally friendly, not only 
must a grave suspicion arise in your minds as intelligent men, but 
you are justified in considering all this testimony of other witnesses, 
that there was a consipracy. 

The Chairman. In other words, this is what you mean, I think: 
If we come to the conclusion that he, a man of power as he was, 
gave his support to the Republican candidate, we can, from slight 
circumstances, come to the conclusion that he did it not only not fairly 
but unfairly ? 

Mr. Russell. But dishonestly? 

Mr. HoEGAN. Well, Mr. Chairman, if there were only slight cir- 
cumstances I think that would be, from lack of explanation 

The Chaieman (interposing). I am not going to criticize these 
things. 

Mr. HoEGAN. Yes; sure. 

The Chairman. I had better say from the circumstances of the 
Case, whether they be light or weighty, your contention is that from 
those facts we can come reasonably to the conclusion that he did 
it dishonestly. 

Mr. HoEGAN. That is my contention, and I hope and believe 

The Chaieman (interposing). I want your view, and if you can 
give us citations on that, in your brief, or show us some authority, 
it will be very helpful to us, 1 think. It will be to me, personally. 

Mr. HoRGAN. I understand that authority on the matter of con- 
spiracv, if proved, has been afforded by the citations on the matter 
of conspiracy? 

The Chairman. Yes. 

Mr. HoEGAN. And I would like just to say this, that I hope and 
believe, aside from the feeling that as a human being I naturally 
tJntertain toward Mr. Timiltj^, we have been in this case animated by 
and have endeavored to show only the feelings that naturally sur- 
round matters of this character, and to present this case as fairly 
and as impartially as a case of this kind can be. We have not in- 
tentionally assailed Mr. Innes personajly, or his integrity. We have 
not even said 

The Chaieman. All Ave want is to get the evidence in this case. 

Mr. HoEGAN. Surely, Mr. Chairman. 

The Chaieman. Either you are entitled to that seat or Senator 
Tinkham is. 

Mr. HoRGAN. Sureh^ 

The Chairman. If he is not entitled to it, we will put you in. If 
he is entitled to it, we will put him in. 

Mr. Rogers. You ought not to say that, Mr. Chairman. 

The Chairman. No ; I ought to say that if he is not entitled to it 
We will vacate the seat, and if after vacating it we find that those 
Votes should have been cast for you, we will put you in. 

Mr. HoRGAN. I understand, Mr. Chairman, that you may either 
Vacate the seat and declare the election void or place me in there. 



CONTESTED-ELECTION CASE HORGAN VS. TINKHAM. 93 

The Chairmax. I merely meant to say that the committee would 
do justice as between you and Congress and as between you and the 
contestee. 

Mr. HoRGAX. I am perfectly satisfied of that. Mr. Chairman. 

Mr. KoGERS. There is just one observation I would like to submit. 
I think there should be some definite agreement as to the limit of 
time for the presentation of these briefs on the law. 

Mr. HoRGAX. Would you say two weeks? 

Mr. Rogers. Suppose we say May 20? 

Mr. HoRGAX. Is that within two weeks? That is ample so far as 
we are concerned. 

The Chairman. Then by May 20 you will have those briefs in? 

Mr. HoRGAX. Yes. We w^ill notify Mr. Innes to-morrow^, so that 
he can have the same opportunity that we may have. 

Mr. RiTSSELL. So that the committee might be entirely fair, do 
you not think it would be probably better now to ask the contestee 
whether he wants to say anything to the committee ? 

The Chairmax. Yes; and if Ave had had him here, I think we 
would have asked him. I will ask the clerk to see if he can communi- 
cate with Mr. Tinkham over the telephone. 

Mr. Russell. He may not desire to appear, but I think he should 
be given the opportunity. 

Mr. Rogers. We had better conclude the heariiig to-day. 

Mr. TiLLMAX. Yes; let us get through with the hearing to-day. 

Mr. Russell. Is it your idea, Mr. Chairman, now^ to make a report 
on this during the present session ? 

The Chairmax. Oh, yes. 

Mr. Russell. I think we ought to do it. 

(Informal conversation between the members of the committee 
followed for about 10 minutes, at the expiration of which time Mr. 
Tinkham, the contestee, appeared before the committee.) 

STATEMENT OF HON. GEOEGE HOLDEN TINKHAM, THE CON- 
TESTEE, A REPRESENTATIVE IN CONGRESS FROM THE STATE 
OF MASSACHUSETTS. 

The Chairman. Mr. Tinkham, we have extended to Senator Hor- 
gan the privilege of making a few remarks, or making such ob- 
servations as he thought he ought to make to this committee, and we 
did not think it Avould be fair to let him have that privilege with- 
out also extending it to you, and if you want to make any statement 
to the committee we will be glad to hear you. 

Mr. TixKHAM. As I understand it — I was not here — the con- 
testant has made a statement and you wish me to make a statement, 
if I desire. 

The Chairmax. He has made a statement. After Mr. Prout had 
finished we called upon him and asked him if he had anything to say. 

Mr. TixKHAM. That is very fair, Mr. Chairman, I am sure. 

The Chairmax. Are there any particular points in your case that 
you would like to bring to the attention of the committee? 

Mr. TixKHAM. The case of the contestee, I think, has been thor- 
oughly explained and amplified by my counsel, who is a very compe- 
tent man, or has been very fully and completely set out in my brief, 
in the preparation of wdiich I took part. From what I have heard 



94 CONTESTED-ELECTION CASE HORGAN VS. TINKHAM. 

Was argued before the committee yesterday — I was not present at 
uny of the hearings — I should like to emphasize particularly two 
facts. The first is, that the eleventh Massachusetts congressional dis- 
trict is not Democratic as has been claimed. I believe the committee, 
to be convinced of this fact, should examine carefully the votes of 
that district for various offices for the last seven years. Those votes 
are carefully set out in the brief and they are the votes which I 
studied before becoming a candidate, and they are the votes also 
which determined my mind. I should not have thought of running 
for Congress without a verj^ careful examination of the situation, 
particularly a very close inspection of the votes cast during the past 
few years. I found, as I testified to in the hearing and as you will 
Dbserve in the brief, that for various offices where the vote was con- 
solidated for the district, the district had been carried time and 
again for the Republican Party, although not for the head of the 
ticket. 

With my knowledge of the issues and the men in each successive 
campaign, I realized that the head of the ticket on the Republican 
side had lost the district because of his weakness and issues or po- 
litical complications, but that basically the district, although I should 
not want to say it was Republican, had a tendency to be more Re- 
publican than 'Democratic. When I found that this was the fact, 
I examined closely into the general political situation. I knew that 
in a mid-election between two presidential elections there was usually 
a reaction against the party in power. I knew there were certain 
local political issues which would be extremely helpful in that par- 
ticular district for a Republican. I think there appears in my testi- 
Jnony various issues which I thought would be helpful for a Re- 
publican. Then I also knew of various antagonisms against the con- 
testant, who I expected would be nominated — wholly political, not 
personal — and I came to the decision that I could defeat him on the 
issues as they lay and in that district and at that particular time. I 
did not announce my candidacy until he had positively announced 
his. The point I want to make is that the committee shall neither 
think nor have the impression that, although the eleventh congres- 
sional district has been represented by a Democrat in Congress, and 
always has been for 12 years, it is a Democratic district, because 
it is not. 

The other fact I desire to impress upon the committee is my good 
faith in my intention to conform both to the United States and 
Massachusetts corrupt-practices acts. The Massachusetts statute had 
just been passed by the legislature in 1914 and was somewhat obscure. 
The Massachusetts statute said that $3,000 was the limit of expendi- 
tures for a congressional election. The United States law allowed 
an unlimited amount for printing and postage, and by the phrase- 
ology of the Massachusetts statute the expenditure for these two 
purposes, it seemed plainly, was not included in the $3,000 limita- 
tion. The facts and the law have been carefully set out in the brief 
and in argiiment. With the understanding that I might be somewhat 
influenced in my opinion because it was to my interest to have the 
law interpreted as I interpreted it, I went to a lawyer who had been 
attorne}^ general of Massachusetts, and who had had a great deal of 
experience in interpreting statutes and enforcing the election laws. 
I wanted no difficulties after my election; it was useless for me to 



CONTESTED-ELECTION CASE HOEGAN VS. TINKHAM. 95 

run for Congress, if after I was elected I was to be unseated. I 
asked his opinion as to whether I could make expenditures for 
printing and postage outside of the $3,000 limit of the Massachusetts 
statute. 

He gave me a written opinion and his personal assurance that 1 
could do so. I also interviewed the man who drew the Massachusetts 
act, Representative Sherburne, of Brookline, Mass., Avhom I knew 
verj^ well, and I asked him what his interpretation of his own bill 
was in relation to the point involved. He told me so far as the 
printing and postage was concerned, that in a congressional election 
the $3,000 limit did not apply, that that was the intention of the act 
and was his intention when he drew the bill. He stated that the 
exemption clause in the Massachusetts statute was put in for that 
very purpose. This is the second fact I desire to emphasize. All 
this appears in evidence and is confirmed by these two men. I think 
it show^s my complete good faith in expenditures, particularly for 
printing and postage. It was only yesterday, when I saw Senator 
Owen al30ut a corrupt-practices act which he has introduced in the 
Senate, that I drew his attention to the fact that, so far as postage 
and printing were concerned, if there Avas a limitation of expendi- 
tures put upon them, then he was putting a limitation upon free 
speech by a representative to his constituents, because there is no 
way in a large city with its various elements in which a candidate 
or representative can communicate with his constituents except 
through the mail. I do not believe it is the intention of any legis- 
lature. I do not believe it is the desire of the people that repre- 
sentatives of the people should be prevented from having free 
speech with their constituents and from communicating with the 
people, and I should say that on principle any law which interfered 
with or restricted communication by a representative with his con- 
stituents might be held unconstitutional as a restriction upon free 
communication and free speech. 

I think this is all I have to say, unless the committee wants to 
ask me any question or for any information which will assist them 
in a complete investigation. If there are any such questions I 
should be much pleased to answer them. 

The Chairman. No ; no question has been raised. 

(At 4 o'clock p. m. the committee adjourned subject to the call of 
the chairman.) 



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